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Ronald Reagan Presidential Library
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Collection: Blackwell, Morton: Files
Folder Title: [School Prayer] (5 of 10)
Box: 19
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National Council of Jewish Women
15 East 26th Street New York, N.Y. 10010
Telephone: (212) 532-1740 Telex: 428540 NCJW UI
Barbara A. Mandel
Dadie Perlov, CAE
National President
Executive Director
June 27, 1983
TESTIMONY BEFORE
THE SENATE COMMITTEE ON THE JUDICIARY
SUBJECT: S. J. RES: 73, A PROPOSED
CONSTITUTIONAL AMENDMENT RELATING TO
VOLUNTARY SCHOOL PRAYER
file
National Council of Jewish Women
15 East 26th Street New York, N.Y. 10010
Telephone: (212) 532-1740 Telex: 428540 NCJW UI
Barbara A. Mandel
TESTIMONY BEFORE
Dadie Perlov, CAE
National President
Executive Director
THE SENATE COMMITTEE ON THE JUDICIARY
ON S. J. RES. 73,
A PROPOSED CONSTITUTIONAL AMENDMENT
RELATING TO VOLUNTARY SCHOOL PRAYER
My name is Esther Pryor. I am Chairwoman of the Capital Committee of
the National Council of Jewish Women, a volunteer organization of 100,000
women and men in 200 communities in the United States. I appreciate the
opportunity to offer this testimony.
NCJW strongly opposes S.J. Res. 73 which proposes an amendment to the
Constitution regarding prayer in public schools.
It is a fundamental belief of the NCJW that religious liberties and
separation of church and state are Constitutional principles which must
be preserved in a democratic society. NCJW has consistantly opposed officially
sanctioned prayer, even so-called voluntary prayer, in public schools.
Permitting an essentially religious practice in secular schools by stating
that "nothing in the Constitution shall be construed as prohibiting" it
is a direct violation and blatant denial of the First Amendment guarantee
of separation of church and state. This fundamental guarantee of freedom
of religion (and from religion for those who do not wish to practice one) is
a prerequisite of our great democracy. In particular, it is basic to the
United States' public education system.
There seems to be an effort to promote the belief that those who oppose
"voluntary" prayer in schools are against religion and, therefore, against
children praying. As observers of the Jewish faith, NCJW members are
(over)
- 2 -
NCJW TESTIMONY: S.J. RES. 73
committed to the practice of religion and to the solace of prayer. We are,
however, convinced that officially sanctioned prayer in the public schools
would automatically place children under enormous pressure to conform to
the practice, thus negating the "voluntary" aspect of the amendment
that is being proposed.
It is particularly disingenuous for proponents of this Constitutional
amendment to attach the phrase that "no person shall be required...to
participate in prayer", as it is not this requirement that will be at
issue for the school child, but the pressure to conform by participation.
NCJW believes that prayer should be conducted in the home or the appropriate
religious institution and not in the schools. NCJW further believes
that no prayer or style of worship is uniformly acceptable to all
religious traditions. Even if it is non-denominational, prayer or
silent meditation could have a religious connotation. Since individual
silent meditation is already permitted and "voluntary" prayer on an
individual basis is not denied, what is the purpose of altering the
Constitution? Would this not put a stamp of' conformity on individuals in
a pluralistic society?
Let us not create a situation which divides our children by providing
an atmosphere which exacerbates religious tensions. Instead it would behoove
our elected representatives to concentrate more of their energy on
strengthening our troubled public school systems. Improving the emphasis
on quality education, rather than undermining the First Amendment to the
Constitution by violating the principle of church/state separation, would
- 3 -
NCJW TESTIMONY: S.J. RES. 73
better serve the needs of America's young people.
The National Council of Jewish Women, therefore, urges Senate defeat of any
proposal which would amend the Constitution to permit organized prayer
or meditation of any kind in the public schools.
Thank you.
Statement of
GORDON O. ENGEN
Director for North America
Department of Public Affairs and Religious Liberty
General Conference of Seventh-day Adventists
Regarding
A Constitutional Amendment Proposed by
SENATOR ORRIN HATCH
Committee on the Judiciary
United States Senate
June 27, 1983
Mr. Chairman; members of the Committee. I am Gordon Engen, director of
the Department of Public Affairs and Religious Liberty for the North
American Division of the Seventh-day Adventist Church.
The Seventh-day Adventist Church, whose headquarters are located here
in Washington, D.C., seeks to guard the vitality of religion in America.
Numbering over 600,000 adult members in the United States and nearly
four million world-wide, Seventh-day Adventists are anxious to defend
the freedom of religious assembly and the sacred right of all
to pray as conscience dictates. But we wish not only to protect the right
to pray and engage in religious assembly; we are concerned equally with the
quality of such activity.
The Constitution of the United States approaches religion
differently from that of any other country. Our forefathers rejected
the notion of a benevolent government granting religious liberty to
its citizens. Instead, they Insisted that these rights were God
given. Therefore, to the government they said, paraphrasing: Abstain
from Involvement with religion, doing nothing that would establish it
or restrict its practice.
Every time well meaning people tinker with this uniquely concelved
document we watch with concern. When amendments are proposed with
religious overtones we become alarmed. And when amendments are
suggested that might alter the Interpretation of the First Amendment,
we jump into action. This is not to fault the amendment procedure
per se, of course, although we would hope that such a procedure never
entails the convening of a constitutional convention which could have
1
even a remote possibility of tampering with the First Amendment. The
amendment procedure serves well--and may have been intended to
serve--the periodic need of clarifying and correcting
governmental relationships, whether between the branches of the federal
government or between the federal government and the several states.
Since 1868 our courts have been directed to apply the Constitution
to conflicts of everyday life all the way from enactments by city
councils to the actions of the federal government. During Its present
term alone, the Supreme Court has been asked to review more than 40
cases Involving the free exercise clause or the establishment clause
of the First Amendment.
Over the years the High Court has developed through case law an
Interpretation and application of the First Amendment that holds government
at bay from involvement in religion and that keeps reilgion from getting
its foot into the door of government.
We see any proposed religious constitutional amendment, Including the
one under consideration here, as potentially upsetting to past applications
of the First Amendment.
For example, could we rely on former Supreme Court decisions if
tension developed between the First Amendment and a new religious amendment?
For the first time in our nation's history the government would be thrust by
constitutional amendment Into the role of "establishing" religious
practices by allowing them to become part of the function of public
institutions. Any religious amendment, no matter how innocuous, would
create tension to a greater or lesser degree. We do not believe our
nation should take that risk.
I'do not impugn the motives of those who are sponsoring this
2
amendment. In fact, I applaude those motives as wholesome and
highminded. As a clergyman, I welcome greater participation in
religious activity through silent or audible prayer, or through
gatherings of those of kindred faith. Seventh-day Adventist
ministers and lay workers throughout the nation are striving for
these same objectives with evangelistic zeal. But this activity
belongs in the churches of our communities and in the lives of private
citizens as self employed or even as employees at some level of
government. Religious commitment makes better workers and better
public servants. But when well Intentioned people place the force of
the Constitution behind their zeal, we strongly object. It alarms us
to contemplate religion taking an official place in public institutions,
as If a form of godliness would please God and cure our social 11is.
With the constitutional waters muddled by enactment of a religious
amendment, however acceptable its content, the efforts to extend
religion further into public Institutions might escalate. We deduce
this from what the zealots now say, things like "Make this a Christian
nation," and "bring our country back to God by enacting laws regarding
prayer or a national day of worship."
Let men and women of high religious moral principles become
Involved in government on all levels. Let them make decisions based on their
high Ideals and principles. But let them not seek to mix the matters of
Caesar with the matters of God by making the latter a function of government.
Opposition to a religious amendment Is not ka vote against God.
Jesus said His kingdom was not of this world. He wishes to establish His
kingdom in the hearts and lives of His followers. Legislative
enactments, constitutional amendments, or pronouncements through public
3
resolutions of government are not God's plan.
Legisiative action that is subject to judicial review is preferable
in safeguarding the free exercise of religion to an
amendment to the Constitution which could bring the whole matter of the
First Amendment and Its application through case law into question.
But even here, efforts to strip the courts of jurisdiction In the area of
prayer through simple-majority bills would evoke our opposition.
For the above reasons we urge you to oppose this and any other
religious constitutional amendment. Do not through such means cloud the
future of church-state separation.
4
TESTIMONY OF
LEON SHULL
NATIONAL DIRECTOR
AMERICANS FOR DEMOCRATIC ACTION
BEFORE THE
SENATE JUDICIARY COMMITTEE
ON
SCHOOL PRAYER
JUNE 27, 1983
My name is Leon Shull, I am the National Director of Americans for
Democratic Action, a national public-policy organization with members in every
state.
I want to thank the committee for giving me the opportunity to testify
today. The question of whether prayer should be required in public schools is
difficult to deal with because of the emotional atmosphere of the debate.
Supporters of school prayer tend to label opponents as anti-religion or even
godless. Such statements are distorted and misleading; they are also
irrelevant. Religion unquestionably holds an important place in our society,
but that place is clearly not in a federally-funded public school system. In
writing for the first Supreme Court decision in 1962, Justice Black stated: "It
is neither sacrilegious nor 'anti-religious to say that each separate government
in this country should stay out of the business of writing or sanctioning
official prayers and leave that purely religious function to the people
themselves and to those the people choose to look to for religious guidance."
The fundamental issue is constitutional. Prayer in the school -- voluntary
or otherwise -- violates the First Amendment by definition. In at least a dozen
decisions from 1947 to 1982, the United States Supreme Court banned govern-
mental assistance to religion and specifically outlawed prayers and Bible
reading in the schools. The advocates of the prayer amendment must logically
reject the basic premise underlying these Supreme Court decisions; they must
Page 2
attack the delicate balance which. the court has constructed between the
establishment and the free exercise clauses of the First Amendment. Father
Robert F. Drinan, who is president of Americans for Democratic Action, a former
Member of Congress, and (of particular relevance to this issue) a Catholic
priest, has summed up the principles at stake: "The advocates of school prayer
are in effect asking the Congress and the country to overthrow the philoso-
phical, juridical, and constitutional synthesis which the court has evolved
over a period of about two generations. The prayer amendment, in other words,
is not a simple modification of the Church-State detente evolved by the Supreme
Court; it is in effect a repudiation of it."
To say that the state is not promoting religion because prayer is
"voluntary" or "silent meditation" is a semantical dodge. Public school
teachers, principals, or school officials, who are all sanctioned by the govern-
ment, are directing and conducting the prayer or the meditation. Authorizing
such government-employed officials to determine what constitutes a non-denomina-
tional prayer is, in effect, giving the government authority in religious
matters. The fact that all children are required by law to attend school
reinforces the notion of government sponsorship of religion. This directly
contravenes the Supreme Court's ruling that the government, either through its
legislature or school officials, must not initiate, promote, or sponsor
religious activities in the public schools. The prayer is taking place on
school property, which is supported by the taxpayers. Allowing the student who
does not wish to participate to leave the room is not protecting his or her
freedom, but is rather excluding that individual from the classroom because of
state-sanctioned religious activity; it is forcing that student into the role
of outcast.
Subtle pressure, whether purposeful or not, from the teacher and from the
student's peers is not in any way conducive to the free practice of religion.
To speak of a 6 or 7 year old, or for that matter, a 13 or 14 year old child
exercising his or her constitutional rights in such an atmosphere is absurd.
There is no question that teachers, who are required to conduct the prayers,
are authority figures. Their attitudes, whether positive or negative, towards
the prayer will certainly affect impressionable children.
Page 3
Offering to create a non-denominational prayer is not the answer. First,
who would decide what that prayer will be? The government? Certainly that is an
instrusion into a sphere where the government has no place. Writing for the
Court, Justice Black concluded that the First Amendment "at least" means that
"it is no part of the business of government to compose official prayers for
any group of the American people." Second, such a prayer is offensive to those
parents who do not wish to bring up their children with any religious beliefs,
and it is offensivé to the intensely religious practitioners for whom prayer is
a sacred activity accompanied by certain practices or words. As the National
Council of Churches has pointed out in previous testimony, orthodox Jews pray
in a specific posture with prayer shawls and head coverings, while devout
Christians would find a prayer that did not include the name of Jesus Christ
unacceptable.
It is for this reason that many religious groups and leaders oppose school
prayer -- they object to the secularization of prayer and the dilution of its
significance.
A prayer amendment tends to assume the nature of a "quick fix" for the
perceived godlessness and secularism of the public schools. But, at best, a
prayer is a minute or two a day in the 30 hours of instruction per week in the
average public school. Much more significant and meaningful would be the sort
of courses about religion approved by the American Association of School
Administrators (AASA) and by all educational and civil liberties groups. These
courses would teach about various religions, such as Judaism, Christianity,
Hinduism, Buddhism, instead of trying to provide ersatz spiritual leadership.
The courses would seek to eradicate religious illiteracy by elevating objective
knowledge about religion to a point of academic respectability. Courses of this
nature do not raise any constitutional questions. Such instruction could be
given for students who elect it and possibly for others. It would be infinitely
more significant and substantive than a moment of prayer. And it would be
legally non-controversial, academically sound, and religiously beneficial.
In the 1952 Zorach vs. Clausen decision, the Supreme Court permitted
released-time religious education so long as it is conducted off the school
premises. For those sincere persons who desire to integrate the secular
Page 4
knowledge transmitted in the public schools more closely with the sacred, there
is a way through released-time that is constitutionally permissible and organi-
zationally feasible.
I find it ironic that an administration which is always promising to
remove excessive góvernment interference from the lives of its citizens is now
trying to impose itself in one of the most sacred and personal areas of an
individual's life. And it is doing so in the face of a specific constitutional
prohibition and very clear and consistent Supreme Court rulings.
I hope that this committee will oppose any such efforts to weaken the
Constitution and the Court, and to curtail one of our most basic rights.
###
TESTIMONY OF THE
NATIONAL COUNCIL OF THE CIIURCIIES OF CHRIST
IN THE UNITED STATES OF AMERICA
BEFORE THE
COMMITTEE ON THE JUDICIARY
OF THE SENATE OF THE UNITED STATES
OPPOSING THE PROPOSED AMENDMENTS TO THE CONSTITUTION
OF THE UNITED STATES TO PERMIT PRAYER OR
MEDITATION IN PUBLIC SCHOOLS
Presented by the Reverend Dean M. Kelley
Director for Religious and Civil Liberty
National Council of the Churches of Christ in the U.S.A.
SUMMARY
This testimony opposes the Administration's proposal because
it is unjust, unwise, unnecessary and a throwback to the old
European tradition of mere religious toleration that our forebears
fled to set up a condition of full religious liberty under the
federal First Amendment.
This testimony opposes the other proposal because it is unnecessary,
out of all proportion to the supposed ill it is designed to remedy,
and would supersede important Constitutional safeguards of individual
rights and libertics and the judicial doctrines built up around
them over many decades.
My name is Dean M. Kelley. I am Director for Religious
and Civil Liberty for the National Council of the Churches of Christ
in the U.S.A. and have held that position since 1960. I am an
ordained minister of the United Methodist Church and have served
local parish churches for 13 years before coming to the National
Council.
I have been assigned by the President and the General
Secretary of the NCC to present this testimony on behalf of the NCC.
The National Council of Churches is the cooperative agency
of thirty-two Protestant and Eastern Orthodox national religious
bodies which have an aggregate membership of over 40,000,000.
We do not presume to speak for all of those members any more than
a Senator can speak for all of the people in his state. We speak
for the Governing Board of the NCC, a representative body of about
300 persons chosen by the member denominations in proportion to their
size and according to their own respective processes. This testimony
is based on a policy statement of the NCC, "The Churches and the Public
Schools," adopted in 1963 and reaffirmed by a resolution on "Prayer
in Public Schools" adopted May 13, 1982. (The Greek Orthodox Arch-
diocese of North and South America dissented from this policy.)
Copies of these are attached.
Since there are two proposed Gonstitutional amendments before
the Committee, we address them in succession. Since the first proposal
is virtually identical with one that was before this Committee a year
ago, we offer substantially the same testimony on it that we gave here
on July 29, 1982, which follows:
2.
of minority religious groups were permitted to coexist with the
majority on the condition that they conform to the dominant or established
faith -- or at least make no outward show of non-conformity.
But it was clear that they were accepted on sufference only; they were'
guests in someone else's house, to be admitted only on condition of good
(religious) behavior. They were not fully citizens because they did not
share the religious commitment expected of all loyal members of society.
Because they did not share that religious commitment, their civil loyalty
was suspect.
Toleration was a relaxed form of the arrangement that came to
dominate Europe after the Protestant Reformation: cuius regio, eius
religio. Under this principle of "territorialism," the religion of
the ruler became the religion of his realm, and those who didn't like
it were free (or sometimes required) to emigrate.
(That was an
improvement over the pre-Reformation situation where religious non-
conformers were burned at the stake, but it still left much to be
desired.)
What the proposed amendment would do would be to abandon the American
experiment of the independence of the civil covenant from the religious
covenant and regrèss to the European situation of toleration and
territorialism, except that in this society the ruler is the majority
of the electorate. The majority would rule in the religious forms to be
instituted in public schools and other public institutions.
Members
of religious minorities, who are equally citizens and whose taxes
equally support those institutions, would no longer be equally at home
in them. They would be guests in institutions belonging more to the
(religious) majority than to them, second-class citizens because of
their religious non-conformity.
4.
By whom? Not by individual children suddenly expressing the wish to
pray, but by "public authorities": teachers, principals, school
boards, states. This is not merely "permitting" people to pray,
this is the state arranging for people to pray, and to pray prayers
selected by the same authorities, even if it is only by inviting a
participant to offer prayer on behalf of all.
So there is no pretense that it will be non-sectarian prayer.
It will be a prayer more acceptable to some than to others, which is
the meaning of "sectarian." We may hope that prayers of various faith-
traditions might be used in rotation, but there is no assurance that
a few Jewish pupils might not have to hear Christian prayers offered
all year round in the public schools that are supposed to be as much
theirs as anyone else's.
Some may say that this can surely do them no harm. But that
is for them to say. Such an assurance is like a fat man leaning on
a thin man and telling him it doesn't hurt! Orthodox Jewish children
are taught that prayer must be made in certain postures, with prayer-
shawl, head covered, etc. What would be undertaken in public schools
would not be "prayer" for them, but a travesty of prayer as they under-
stand it.
The solution for them, we are told, is to be excused.
"No person shall be required by the United States or any state to
participate in prayer," the amendment says, and that provision is
designed to cure all ills that might arise. But what does it mean?
Are there pressures and expectations that do not rise to the level of
state-imposed "requirements" that still might have a strong adverse
effect on impressionable children? How about the teacher's using a
sarcastic or scornful tone of voice when excusing those who wish to be
6.
with true religious liberty until 1962, and we should not be surprised
if this cultural lag affects the general public for a few decades
longer.
But we are told that no such problems troubled the American
classroom prior to the Supreme Court's (mis?) reading of the First
Amendment in 1963. All was supposedly sweetness and light when the
several states, and indeed each local community, could set its own
standards for religious practices in public-school classrooms. But
that is -- unfortunately -- not true. The record is replete with
stories of children made to suffer because they would not conform to
religious practices in public schools. A Massachusetts case in 1859
involved a Roman Catholic boy of eleven, Tom Wall, who, acting on
instructions of his parents and his priest, declined to confirm
to a classroom religious practice. He was whipped on the hands with
a rattan stick until he consented to conform. 6 In
some states,
litigation led to the elimination of prayer from public schools long
before 1963. It was a fertile field for community strife and litigation,
and courts reached diverse conclusions, sometimes upholding the practice,
as in the case of Tom Wall, cited above. Thus the establishment of
religion -- in this respect at least had come to have a different
meaning from one jurisdiction to the next.
But that is not what a federal Bill of Rights should permit.
How many of us wish to submit our most precious rights and liberties
to local option?
IB
The proposed amendment is unwise because it would authorize
practices in public schools that would permit government intrusion
7a
I can pray that the United States will become Christian (as I
understand and interpret my faith) with a measure of confidence
and hope because of the nature of the republic and the composition
of its peoples. We are encouraged freely to express and exercise
our convictions while being denied the right to impose those
convictions on others. The doctrine of the separation of church
and state, as defined in the First Amendment of the Constitution,
provides the essential safeguards. It insists that the church
dare not be viewed as an arm of the state. It insists that the
state dare not dominate or intimidate the church. The "wall
9.
(This policy statement is attached.)
Many people have responded favorably to the proposal to
"get the government off our backs," and particularly to keep it out
of any activities that might interfere in family life and the nuture
of children by their parents. It is surprising that some of the same
people are now proposing to allow State and local governments, through
the state instrumentalities of public schools, to introduce religious
forms and practices that will be at odds with those which some parents
are trying to inculcate in their children. In this most sensitive
area of family life, the clumsy and untutored intrusion of governmental
authorities, however well-intended, is especially unwise.
It is sometimes claimed that some children would never hear the
name of God if they did not have the benefit of public-school prayers,
but that is precisely the kind of intrusion that some parents, if they
are intentionally bringing up their children in a non-theistic approach
to life -- as is their right -- may wish to avoid. Other parents may
feel that their particular devout form of faith will not benefit from
perfunctory recitations of someone else's prayers in a non-ecclesiastical
setting, and so oppose it because public schools prayers are not
religious enough.
The National Council of Churches cannot overlook the fact that
Christians are admonished by the Lord Jesus Christ in the Sermon on
the Mount not to make a show of prayer in public places:
And when you pray, you must not be like the hypocrites;
for they love to stand and pray in the synagogues and at
the street corners, that they may be seen by men. Truly,
I say to you, they have their reward. But when you pray,
go into your room and shut the door and pray to your Father
who is in secret; and your Father who sees in secret will
reward you.
(Matthew 6: 5-6)
11.
I C
Lastly, the proposed Constitutional amendment is unnecessary,
since any person can pray to God at any time or place, and the Supreme
Court cannot prevent it, nor can the Congress enable it. It is only
oral, collective, unison prayer that requires "state action," and since that
kind of prayer is not necessarily more efficacious than the silent,
inward petition of the heart (as well as being less conconant with
Christ's admonition), it is obviously being sought for symbolic reasons,
to make some kind of a statement or demonstration about the nature of
the public school, the state, the nation.
Indeed, that is a recurrent argument of proponents of a prayer
amendment: that public schools -- and our whole society ---- have
deteriorated since prayer was removed from public schools, and that
restoring it will rectify the accumulated ills of the past two decades:
vandalism, violence, drug addiction, delinquency, sexual promiscuity,
and perversion, etc. Would that restoring prayers in public schools
could have such a result! But children's lives are not transformed by
magical incantations but by the models set for them in the conduct of
their elders. And there is no need for a Constitutional amendment to
enable adults to set a moral and righteous example for their children.
They can do that now. To want to press. prayer into service as a device
for improving the moral climate of the schools -- desirable as that
would be -- is to demean it from an end in itself -- communion with
God -- to a means to another -- and lesser -- end: improving the behavior
of (other people's) children. That is precisely what the Lord criticized
about using prayer to make a public show for ulterior reasons.
The proposed amendment is unnecessary in another respect. If it
is desired to make children more fully conscious of the religious roots
13.
II A
The other proposed amendment before the Committee is
somewhat more elaborate:
Sec. 1 Nothing in this Constitution shall
be construed to prohibit individual or
group silent prayer or meditation in public
schools.
Neither the United States nor any
State shall require any person to participate
in prayer or meditation, nor shall they encourage
any particular form of prayer or meditation.
Sec. 2 Nothing in this Constitution shall be construed
to prohibit equal access to the use of public school
facilities by all voluntary student groups.
It is preferable to the first proposed amendment in that it would
authorize only "silent prayer or meditation," which makes possible
a non-religious interpretation of the authorized activity for those
who would prefer to understand it in that way, provided local school
boards must preserve the dual option. If local school boards can
themselves choose to offer only the option of "silent prayer," that
advantage is lost.
The proviso "silent" also eliminates the entire issue of content,
with its troublesome question of imposing one or another "sectarian"
prayer on persons who do not subscribe to it, as well as the companion
question of whether there is any such thing as a non-sectarian prayer,
and whether it would be of any great significance.
Of course, there are sectarian forms of prayer even silent
prayer -- as well as sectarian content.
As stated earlier, Orthodox
Jews believe that prayer is authentic only if offered in a certain
posture, with head covered, wearing a prayer-shawl, etc. The next
sentence seeks to preserve governmental neutrality with respect to the
15.
schools), etc.? This again seems to blur the important distinction
between the curricular and the extra-curricular.
More important, it may sweep aside the important concept of the
"limited public forum," which formed the basis of the U.S. Supreme
Court's decision in Widmar V. Vincent, 8 holding that if a state
university had provided a (limited) public forum for (extracurricular)
student groups with non-religious purposes, it could not ban those with
religious purposes without engaging in content-based exclusions of one
particular category of speech.
The University was not obliged, however, to provide any public
forum for any student groups, nor to open that forum to activities that
would disrupt or interfere with the primary function of the university:
education. It is these considerations which make a school a limited
public forum, and which should be preserved in any constitutional amend-
ment, so that no school is under the impression that it is obliged to
provide a public forum for voluntary student groups or to permit activities
there to interfere with its primary function of education.
II C
There is a range of other problems generated by this proposal
that can only be suggested here: what are the appropriate safeguards
against the school's sponsoring or appearing to sponsor, endorsing or
appearing to endorse, the religious activities or identities of voluntary
student groups of a religious nature?
There is nothing in the proposed amendment to require or imply
that the public school may not extend an equal mantle or aegis of
sponsorship or endorsement to "all voluntary student groups" to which
17.
problems than restricted participation by faculty members
responsible to the school.
5. Can any outside speakers or resource leaders be brought In
by "voluntary student groups?" -- Probably not on a continuing basis,
for reasons suggested above, but single appearances might be permissible
if that is the school's policy with respect to non-religious extra-
curricular clubs.
These questions are listed to suggest a whole range of
troublesome issues on which the proposed amendment is silent, and which
would have a significant bearing on whether the state is genuinely
neutral with respect to religion in the undertakings sought to be
authorized under the proposal. Without some idea of how they would be
resolved, it is difficult to judge whether the amendment would do more
good than harm.
Do existing legal canons such as "governmental neutrality,"
"limited public forum," and non-sponsorship, non-imprimatur, non-
establishment, apply to this proposal? They are based on the existing
First Amendment and its interpretation by the courts over the years.
But the new proposal, if approved by two-thirds vote of both Houses
of Congress and ratified by the legislatures of three-fourths of the
States, would supersede any Constitutional provisions in conflict with
it, and any tests or canons derived from them: "Nothing in this
Constitution shall be construed to prohibit...' etc. Thus a lot of
very important and hard-won protections for religious and civil liberties
could be swept aside by a new Amendment.
The Judiciary Committee of the Senate is to be applauded for arranging
these hearings to consider the implications of any proposal to change
the wording of the U.S. Constitution. Such changes should not be
19.
The Executive Committee of the National Council of Churches,
meeting in San Francisco on May 10, 1983, has supported the general
concept of the Hatfield bill (S.815), but the National Council of
Churches cannot endorse the amending of the Constitution even for such
commendable purposes (especially when there is good reason to think that
ordinary legislation will suffice to accomplish the intended effect).
Its Governing Board in 1963 resisted the suggestions for changing the
wording (or effect) of the First Amendment and reaffirmed that view in
1982. They are no more receptive now to any similar proposals for
tampering with the First Amendment.
A
Policy
Statement
of
the
National
Council
PRONOUNCEMENT
of
the
A
Churches of Christ in the United States of America
OPPOSITION TO THE CHRISTIAN AMENDMENT PROPOSAL
Adopted by the General Board
June 1, 1959
The General Board of the National Council of the
them such as support of school and welfare institu-
Churches of Christ in the U.S.A. reallirms its support
tions, extended tax privileges for property and enter-
of religious freedom for all people and, being aware of
prises under Christian names.
proposals currently agitated for an amendment to the
(4) The proposed amendment would embarrass our
Constitution of the United States intending to declare
commenical relations and our missionary enterprises
that the United States is il Christian nation, sets forth
and also general international relations as viewed by
the following concerns for the consideration of the
Christians and by the world majority of non-Christians,
churches and the nation.
through officially attaching the Christian name to mili-
(1) A constitutional amendment of this purport
tary, economic, and other acts and policies of the Gov-
confuses the nature and function of the nation-state
erninent of the United States.
with the nature and function of churches. It would in-
(5) To declare the United States a Christian nation
crease the present difficulties of citizens in comprehend-
in the clairchman's sense of "Christian," is to assert
ing and in continuing healthy separation and sound
less of truth than of pretension. That " I'lll rightly be.
relations between church and state. These reflections
longs to significant religion. with biblical and theologi-
are set forth with full awareness that this nation and
cal meaning and simply is not applicable to the Ameri-
all other nations stand constantly under the judginent
can nation as a whole. Morcover. the proposal in
and the sovereign authority of God.
question, if given an aura of validity by incorporation
(2) Previous attempts to maintain "Christian states,"
in the Constitution, would tempt many unthinking
in earlier centuries as well as in our own. have been
church members to complacent hypocrisy in their out-
fraught with great problems and have failed in dis-
look upon society, national and international. In fine.
illusion. They have frequently denied general liberty,
it is perilous, even sacrilegious, to turn to the political
and religious liberty in particular, to all who did not
forum for practical determination of the public mean-
belong to the dominant body of Christians. In the
ing of the great word. "Christian." The church cannot
American scene of today, a constitutional sanction for
share this word. central and peculiar to its character.
with the nation-state."
Christianity would tend to weaken the rights and lib-
ertics of citizens and others who are not Christians. to
In the light of these considerations the National
lessen respect for their distinctive concerns. and to
Conncil of Churches records its opposition to the pro-
accentuate divisions within the body politic.
posal for an amendment to the Constitution of the
United States intending to declare the United States
(3) The intended amendment would strengthen the
to be a Christian nation.
hands of those who desire financial and other privi-
leges for Christian churches ready and able to secure
59 FOR. 1 AGAINST, 0 ABSTENTIONS
17.4-1
A
PRONOUNCEMENT
A Policy Statement of the National Council of the
Churches of Christ in the United States of America.
THE CHURCHES AND THE PUBLIC SCHOOLS
Adopted by the General Board
June 7, 1963
As Christians we acknowledge God as the ground
context in which all individuals may share in an educa-
and source and confirmer of truth, whose Spirit is ever
tion which contributes to the full development of their
ready to respond to men's and children's search for
capacities. It serves as a major cohesive force in our
understanding by correcting their fumbling misappre-
pluralistic society. Wo also recognize that significant
hensions and leading them into larger and fuller trath.
value derives from the fact that this system is financed
Teaching and learning at their highest are pursued
by public funds, is responsive to the community as a
within this recognition. As Americans we are firmly
whole, and is open to all without distinctions as to race,
committed to the right of freedom of conscience and
creed, national origin, or economic status.
freedom of religion, that is, the freedom of each citizen
DEFINITION OF ROLES
in the determination of his religious allegiance, and
the freedom of religious groups and institutions in the
Religious ideas, beliefs, values, and the contributions
exercise and declaration of their beliefs.
of churches are an integral part of our cultural heritage
The American tradition with respect to the relations
as a people. The public schools have an obligation to
of government and religion, often described as "separa-
help individuals develop an intelligent understanding
tion of church and state" does not mean that the state
and appreciation of the role of religion in the life of the
is hostile toward, or indifferent to, religion. On the con-
people of this nation. Teaching for religious commit-
trary, governments-national, state and local-have pre-
ment is the responsibility of the home and the commu-
vailingly acknowledged the importance as well as the
nity of faith (such as the church or synagogue) rather
autonomy of religion and have given expression to this
than the public schools.
principle in many ways.
We support the right of religious groups to establish
In present-day American society, with its diversity of
and maintain schools at their own expensa provided
religious conviction and affiliations. the place of reli-
they meet prescribed éducational standards.
gion in public education must be worked out within this
We support also the right of parents to decide
recognition of the prevailingly positive attitude of the
whether their children shall attend public or non-public
American people as a whole toward religion and safe-
schools. The parent who chooses to send his children
guarding of religious liberty.
to a non-public school is not excused from the respon-
As Christians we believe that every intlividual has a
sibility of the citizen to support and seek to improve
right to an education aimed at the full development of
the public schools.
his capacities as a human being created by God. his
Neither the church nor the state should use the
character as well as his intellect. We are impelled by
public school to compel acceptance of any creed or
the love of neighbor to seek maximum educational op-
conforntity to any specific religions practice,
portunities for each individual in order that he may
11 is an essential task of the churches to provide ade.
prepare himself for responsible participation in the
quate religious instruction through every means at their
common life.
disposal. These include both those activities which
individual churches provide within their own walls and
CONCERN FOR THE PUBLIC SCHOOLS
also various joint ventures of churches invoiving co-
operation with the public schools. Christian nurture
We reaffirm our support of the system of public edu-
and the development and practice of Christian worship
cation in the United States of America. It provides a
are ineseapable obligations of the congregation and the
In this document the terms "puthe education" and "pollir achouln" Are
family. We warn the churches against the all-too-human
taken in mean the system of public elementary and accoudary education
In the United States.
tendency to look to the state and its agencies for sup-
13.5-1
sacing
orom-
RESOLUTION ON
PRAYER IN PUBLIC SCHOOLS
NATIONAL COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A.
475 Riverside Drive, New York, NY 10115
Adopted by the Governing Board
May 13, 1982
Whereas, in a Policy Statement entitled 'The Churches and the Public Schools." adoped June 7, 1963,
the Governing Board of the National Council of the Churches 01 Christ in the U.S.A. said:
"Neither the church nor the state should use the public school to compel acceptance of any creed or
conformity to any specific religious practice...";
Whereas, the same Policy-Statement also stated:
" The Supreme Court of the United States in the Regents' Prayer Case has ruled that In this country it
is no part of the business of government to compose official prayers for any group of the American
people to recite as part of a religious program carried on by the government.' We recognize the wisdom
as well as the authority of this ruling
Whereas, the same Policy Statement continued:
'We express the conviction that the First Amendment to our Constitution in its present wording has
provided the framework within which responsible citizens and our courts have been able to afford maxi-
mum protection for the religious liberty of all our citizens
Whereas, the President of the United States has recently announced his Intention to propose to Congress
a constitutional amendment which could lead to the reinstatement of group prayer in public schools;
Whereas, the recitation of prescribed nondenominational prayer demeans true religion by denying the
traditions of faith groups while imposing on some children religious practices which are offensive to them;
and
Whereas, there is a danger that the rights of members of minority religions would not be adequately
protected;
Therefore, be it resolved that the Governing Board of the National Council of the Churches of Christ in
the U.S.A.:
Reaffirms its belief, as set forth in the Policy Statement on "The Churches and the Public
Schools" that "Christian nurture and the development and practice of Christian worship
are unescapable obligations of the congregation and the family"; and
Reaffirms its support of the Supreme Court language describing the First Amendment as
providing no role for government in prescribing or providing for prayer in public schools.
Policy Base: The Church and the Public Schools, adopted by the General Board, June 7, 1963.
WASHINGTON OFFICE
OF THE EPISCOPAL CHURCH
110 Maryland Avenue, NE Washington, DC 20002
Telephone: (202) 547-7300
TESTIMONY of Sherry Stanford, Legislative Associate, Washington Office
of the Episcopal Church, before the Senate Subcommittee on the Constitution,
United States Senate.
June 27, 1983
My name is Sherry Stanford, Legislative Associate, Washington
Office of the Episcopal Church. I am here today to respond to the
proposed Hatch Amendment and to reiterate the position of the Episcopal
Church regarding prayer and religious exercises in public schools.
In November 1981, the Executive Council of the Episcopal Church
adopted the following resolution in response to legislation being
proposed in the 97th Congress.
Whereas, There are proposals pending in the
Congress of the United States to facilitate the
establishing by governments of prayer in the
public schools; and
Whereas, It is not and should not be the
business of government to establish when people
shall pray or the prayers which they shall use; and
Whereas, It is always open to any person to
pray at any time whether in the public schools,
at work or at play; therefore be it
Resolved, That this Executive Council encourages
the use of prayer in connection with all aspects of
daily life while at the same time strongly opposing
all attempts by the state to establish when or how
The Rev. William L. Weiler, Washington Affairs Officer
- 2 -
people shall pray, and thus opposing all government
legislation which would prescribe means or methods
of prayer in public schools or which is designed to
encourage local authorities to prescribe such means
or methods of prayer in public schools; and be it
further
Resolved, That a copy of this resolution be
sent to every member of Congress.
The Hatch Amendment is unacceptable based upon the reasons set
forth in the aforementioned resolution.
Nothing in this Constitution shall be construed to prohibit individual
or group silent prayer or meditation in public schools
...
There is nothing prohibiting an individual from praying silently
in public schools. Group silent prayer, however, would require a leader
to suggest that the group pray or meditate, and in all likelihood, it
would be a governmental official, a teacher, acting upon policy
formulated by the state or local school district that there be time set
aside for silent prayer or. meditation.
Neither the United States nor any state shall require any person to
participate in such prayer or reflection
...
While student participation would not be required, non-
participating students would be forced either to leave the classroom or
to sit with the group while not participating. Such would be an
- 3 -
embarrassing situation for the nonparticipant. In either case, the
formalization of silent prayer by a governmental entity would engender
some measure of coercion of the student to participate in the organized
religious activity.
Nor shall they encourage any particular form of meditation or prayer
...
A state or local governmental entity would determine that a
time for silent prayer or meditation be provided during the day. The
amendment would encourage some local authorities to set aside a time
of prayer or meditation and it is not the business of government to
establish when people shall pray.
Thank you for the opportunity to present the position of the
Episcopal Church.
STATEMENT
of
Samuel Rabinove
on behalf of
THE AMERICAN JEWISH COMMITTEE
on the Hatch Amendment
before the
Subcommittee on the Constitution of the
SENATE COMMITTEE ON THE JUDICIARY
June 27, 1983
American Jewish Committee
165 East 56 Street
New York, New York 10022
STATEMENT
of
Samuel Rabinove
on behalf of
THE AMERICAN JEWISH COMMITTEE
on the Hatch Amendment
before the
Subcommittee on the Constitution of the
SENATE COMMITTEE ON THE JUDICIARY
June 27, 1983
On behalf of the American Jewish Committee, I very much appreciate the
opportunity to testify on the Hatch Amendment, a proposed constitutional amendment
which, in part, would permit individual or group silent prayer or meditation in
public schools. We wish to speak in opposition to this section of the amendment
(Section 1) and urge that it be rejected, essentially because'it would have the
effect of amending the First Amendment.
The beneficent teachings of religion have contributed immeasurably to
human progress from barbarism to civilization. Our nation, in particular,
settled in large measure by people who were yearning for freedom of conscience,
having fled religious persecution, has been profoundly influenced by religious
concepts. Every variety of denominational belief has flourished in this country,
hand in hand with the American tradition of separation of church and state,
which has served as a bulwark of religious liberty. The principle of separation
of religion and government, as guaranteed by the First Amendment, is indeed one
of the cornerstones of our freedom. It should be reinforced, not eroded.
-2-
Underlying the Establishment Clause of the First Amendment was the conviction
on the part of the Founding Fathers that any union of government and religion
inevitably would impair government and would degrade religion. And tax-supported,
non-sectarian public schools have served as a unifying force in American life --
welcoming young people of every creed, seeking to afford equal educational
opportunity to all, emphasizing our common heritage and serving as a training
ground for community living in our pluralistic society.
In 1962 the U.S. Supreme Court, in Engel V. Vitale, ruled that the recital
of a state-composed ostensibly non-denominational prayer by public school children
at the start of each school day violated the First Amendment. And the following
year, in Abington School District v. Schempp, the Court struck down a program in
which passages from the Bible were required to be read and the Lord's Prayer
recited. The rationale for these decisions is as compelling as ever. The Lord's
Prayer, for example, is a Christian prayer. And no prayer, however neutral it
may seem, can ever be truly non-denominational. In attempting to incorporate
the tenets of several major religions, the meaning of prayer can only be diluted.
It is simply not a proper function of our government to compose or to sponsor
prayers for American children to recite. In the words of conservative libertarian
columnist James J. Kilpatrick, writing in the Washington Post of December 10, 1981:
"The state simply has no business in the religion business
The best solution
is to leave a child's religious instruction where it belongs, in the home, in
the church, in the temple, in his mind and heart."
It should be stressed, however, that nothing in the Supreme Court rulings
prevents any public school pupil from praying, either silently or aloud, whenever
the spirit moves him or her to do so, provided only that the school program is
-3-
not disrupted thereby. There are public school children today who have stated
that they have engaged in serious prayer during school hours (before examinations,
for example), and, to the best of our knowledge, nobody has ever interfered or
denied their right to do so. It would seem, therefore, that there is no need
whatever for a constitutional amendment to permit individual silent prayer or
meditation in public schools. (When I was a child, I personally and privately
prayed in public school. I would feel equally free to do so today.)
Group silent prayer or meditation in public schools, however, may be
another matter entirely. While there could be a situation where children may wish
to come together, of their own volition, for group silent prayer or meditation,
that is hardly a frequent occurrence. It is far more likely, in our view, that
Section 1 of this proposed amendment would be seized upon by those in government,
who are determined to restore organized, officially sanctioned prayer in public
schools, to use the machinery of the public schools to require that time be
allotted for group silent prayer or meditation. This, we believe, would open
the door to serious abuses and would surely violate the spirit of the Establishment
Clause of the First Amendment.
It is important to note that the practices which would be permitted by
the proposed amendment would not take place in a social vacuum. In hundreds of
public school. districts throughout the country (for example, Bristol, Virginia
and Reidsville, North Carolina) organized spoken prayer, Bible reading and
religious proselytization are taking place today on a regular basis, in outright
defiance of the Supreme Court decision in Schempp. Citizens who dare to challenge
such practices frequently are threatened, insulted and ostracized, as are their
children in the public schools. If this amendment were to be adopted, these
violations could be expected to proliferate.
-4-
One may wonder why there exists this apparent preoccupation with the
need to intrude group prayer or meditation into our public schools. With some,
it seems almost an obsession. We do indeed face a crisis in public education.
We all have a vital interest in upgrading the quality of the education now
being received and experienced by American children, in the sciences and in
mathematics in particular. But the controversy over prayer and meditation has
nothing whatever to do with this. In fact, it is a "smokescreen" and a
distraction from what ought to concern us all. If we are truly serious about
what is going on -- and what is not going on -- in our public schools, what is
urgently needed is to restore the Federal funds that have been slashed from
educational assistance programs.
It is indeed the task of the public schools to reflect and to help
inculcate the highest moral and ethical values of our society, as well as to
develop character and responsible citizenship. But if this is the main concern
of the sponsors of Section 1 of the proposed amendment, it must be said that
permitting group silent prayer or meditation would hardly suffice to serve this
purpose. What does belong in public schools, however, is the teaching of common
core values -- honesty, decency, compassion, patriotism, fairness, respect for
the rights of others -- that are broadly shared by people of all denominations
and none. Nor is there anything in U.S. Supreme Court decisions to preclude
such instruction, provided it is not couched in religious terms. These values
can be taught far more effectively by adult example and by the day-to-day
behavior of parents, school principals, administrators and teachers than by
group silent prayer or meditation.
-5-
In sum, we believe not only that there is no need for Section 1 of the
proposed amendment, but also that it carries within it the seed of great
potential for mischief. We question its wisdom. Clearly, it tampers with
the First Amendment, the centerpiece of the Bill of Rights, which has stood
Americans in good stead since its adoption in 1791 and which should remain
inviolate. To paraphrase a current popular expression, it is not broke and
does not need to be fixed. We urge, therefore, that Section 1 be rejected.
Respectfully submitted,
Samuel Rabinove
Legal Director
83-630-31
TESTIMONY
OF
RUTI TEITEL
ASSISTANT DIRECTOR
LEGAL AFFAIRS DEPARTMENT
ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH
ON
PROPOSED AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES
RELATING TO VOLUNTARY
SILENT PRAYER OR MEDITATION
BEFORE THE
COMMITTEE ON THE JUDICIARY
SENATE
JUNE 28, 1983
Mr. Chairman and members of the Committee:
My name is Ruti G. Teitel. I am the Assistant Director of the Legal Affairs
Department of the Anti-Defamation League. During my tenure with the ADL, I have
written and lectured on the subject of church-state relations, as well as co-
authored various amicus briefs in the federal courts and the United States
Supreme Court in civil liberties matters, including May V. Cooperman concerning
the New Jersey "moment of silence" statute and Donnelly V. Lynch concerning the
constitutionality of a nativity scene in Pawtucket, Rhode Island.
Two decades ago, the Supreme Court of the United States held that prayer and
Bible readings in the schools are unconstitutional. Today, by this proposed
amendment which relates to permitting voluntary prayer and meditation in the pub-
lic schools, this body seeks to overturn those decisions. Moreover, it seeks
sub silentio to repeal the Establishment Clause of the First Amendment.
The Anti-Defamation League, on whose behalf I appear today, opposes this
amendment. Since 1913, when it was founded, the Anti-Defamation League has been
committed to protecting religious freedoms in this country, just as did our
Founding Fathers, by maintaining a wall of separation between church and state.
We have evidenced this continuing concern by our amicus curiae participation in
such seminal Supreme Court cases as Abington V. Schempp, 374 U.S. 203 (1963)
which disallowed as unconstitutional, Bible reading and prayer recitation in pub-
lic schools; Lemon V. Kurtzman, 403 U.S. 602 (1971) which held unconstitutional
state aid to private religious schools; and by testimony before the Congress and
state legislative committees.
The instant proposal, we submit, threatens our protected religious liber-
ties. The amendment before us today seeks to make equal what is not equal. In
the name of "equal access," it proposes to allow prayer and meditation in our
public schools and to treat clubs devoted to religious worship, just as those
- 2 -
devoted to stamp collecting, classical literature, lacrosse or hockey. There is
something disingenuous in all of this.
Religion in America's political system has never been treated equally with
secular activities. It is precisely because of the special nature of religion
that the Founding Fathers distinguished religion, by making particular provisions
for religion in the Constitution through the First Amendment's Establishment and
Free Exercise Clauses. These provisions stating that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise there-
of," are concerned with demarcating the place of religion and government in our
society -- a chief concern of the founders of this country, because of the his-
torical alignment of government with religion in Europe which resulted in perse-
cution of minorities and in the resettlement in the New World. The central pur-
pose, then, of the Establishment Clause providing that Congress shall make no law
respecting an establishment of religion, as noted by the Supreme Court in 1962,
"rested on the belief that a union of government and religion tends to destroy
government and to degrade religion." Engel V. Vitale, 370 U.S. 421, 431 (1962).
It is because of the more than equal, first class status of religion in our sys-
tem that we have these special constitutional protections. As Madison wrote, it
is because "religion is too personal, too sacred, too holy." Memorial and Remon-
strances against Religious Assessments, II Writings of Madison, at 187.
When the Supreme Court of the United States interpreted the Establishment
Clause to bar prayer in the schools, the Court specifically addressed the dis-
crimination or inequality argument raised by this committee today. As to those
who "argue[d] that to apply the Constitution in such a way as to prohibit state
laws respecting an establishment of religious services in public schools is to
indicate a hostility toward religion or toward prayer," the Court declared:
"[n]othing, of course, could be more wrong." Engel V. Vitale, 370 U.S. 421,
- 3 -
433-434 (1962). "It is neither sacrilegious nor anti-religious to say that each
separate government in this country should stay out of the business of writing or
sanctioning official prayers and leave that purely religious function to the peo-
ple themselves and to those the people choose to look to for religious guidance."
Engel V. Vitale, 370 U.S. 421, 435 (1962).
This thought - that something so personal and sacred as religion should not
be in the public schools but rather at home or in places of worship - is
labelled by some proponents of this amendment as hostile to religion and as
"Soviet" in nature.
This notion is misbegotten. It ignores the purposes of the First Amendment
protections -- grounded not in hostility but in respect for religion. The prem-
ise of these First Amendment protections, as the Supreme Court held in 1948, is
that "both religion and government can best work to achieve their lofty aims if
each is left free from the other within its respective sphere." McCollum V.
Board of Education, 333 U.S. 203, 212 (1948).
Today, this purpose can best be understood by subjecting the proposed amend-
ment to the Supreme Court's tripartite Establishment Clause test. What will
become evident are the inevitable dangers of intertwining religion and government
(or public) run schools -- dangers which impermissibly violate the Establishment
Clause as it has been read for close to 40 years.
Today's legislation contravenes all three prongs of the Establishment Clause
test: it does not reflect a clearly secular legislative purpose, its primary
effect is to advance religion and it excessively entangles the government with
religion.
First and foremost, the purpose of this proposed amendment is concededly
religious and, thus, unconstitutional. The first section of this amendment spe-
cifically provides for allowing silent prayer or meditation either individually
- 4 -
or in groups in the public schools. The second section, couched in secular terms
such as "equal access" open forum policy, has a clear religious purpose. As Sec-
retary of Education Terrell H. Bell stated in his testimony before the Subcommit-
tee on the Constitution on behalf of the Administration's proposed constitutional
amendment on voluntary prayer:
the 'Equal Access' concept would serve to restore voluntary
religious activity to an equal status with other extracurric-
ular activities permitted on public school premises.
This testimony makes clear the religious purpose of "equal access" policy; it is
not an equal protection clause for extracurricular activities. Under the "equal
access" section of the proposed amendment, all types of religious activity would
be permitted -- beyond the silent prayer or meditation of section 1 of the amend-
ment, including a variety of religious activities such as singing hymns, liturgy,
Bible readings and proselytization.
Thus, this amendment openly seeks to bring prayer and Bible instruction into
the public schools. Since 1948, this objective has been ruled unconstitutional.
In McCollum V. Board of Education, the Supreme Court considered a voluntary reli-
gious instruction program - which offered study of all faiths in the public
schools. In that case the Court found that "a state cannot consistently with the
First and Fourteenth Amendments utilize its public school system to aid any or
all religious faiths or sects. 333 U.S. at 211. For almost forty years
since that decision, the Supreme Court has steadfastly found that prayers or
Bible instruction in the public schools reflect a religious purpose and, thus,
violate the Establishment Clause.
Second, the effect of this amendment would be to impermissibly advance reli-
gion. Prayers and Bible readings in public schools confer the imprimatur of
state approval on religious practices. As the Supreme Court noted in Widmar V.
Vincent, 454 U.S. 263 (1981), a recent case concerning Bible clubs on university
- 5 -
campuses, in contrast to university students, the youth and impressionability of
public school students prevents them from appreciating the supposed neutrality of
a school's open forum policy. Widmar V. Vincent, 454 U.S. at 276. For public
school students, the mere presence of prayers and religious activities in govern-
ment-run schools shows government approval of. religious exercises. Therefore,
because the public school setting combines a captive impressionable audience with
a government-controlled environment, review of religious practices in the public
schools must be stringent. Due to this special concern for the religious neu-
trality of the school system, many religious activities occuring in educational
facilities during school hours have been found unconstitutional. These unlawful
practices include the posting of the Ten Commandments in public school class-
rooms, Stone V. Graham, 449 U.S. 39 (1980); religious instruction in public
school facilities, McCollum V. Board of Education, 333 U.S. 203 (1948) and reci-
tation of student led prayer, Karen B. V. Treen, 653 F. 2d 897 (5th Cir., 1981),
aff'd, 455 U.S. 913 (1982). In all of these cases, the presence of religious
activities in the public school setting had the effect of promoting religion.
Moreover, the fact that the silent prayer or Bible clubs allowed by the pro-
posed amendment would be voluntary is of no significance. The voluntariness of
prayer recitation and excusal provisions from Bible study clubs have not cured
their unconstitutionality under the Establishment Clause. Decision after deci-
sion show the irrelevance of student voluntariness as concerns religious prac-
tices in the public schools. Whether the activity concerned voluntary student
attendance at religious instruction classes geared to all faiths, McCollum V.
Board of Education, 333 U.S. 203 (1948) the voluntary reading of Bible verses by
students, Abington V. Schempp, 374 U.S. 203 (1963) or voluntary student-initiated
prayer 'at the beginning of the school day, Karen B. V. Treen, 653 F. 2d 897 (5th
- 6 -
Cir., 1981), aff'd, 455 U.S. 913 (1982), all have been found to unconstitution-
ally advance religion, in the public schools, despite the voluntary nature of the
activity. The voluntariness of student participation fails to diminish the
effect of the appearance of government sponsorship of these religious activities
when they take place in the public schools. Moreover, it is an abstraction to
speak of voluntariness at the public school level. What are students to do if
they do not wish to participate in these exercises? Should the burden of distin-
guishing his or herself as nonreligious fall upon a student attending a govern-
ment school?
Further indication of this proposed amendment's unconstitutionality is the
excessive entanglement it would require of government in religion.
Here the state is entangled because the prayers and other religious activi-
ties will occur in public school facilities. As found by the Supreme Court in
McCollum V. Illinois, the state is entangled simply through the use of tax-sup-
ported public school buildings. When religious exercises take place in state run
school buildings, they are considered to be under the authority of local school
officials.
The state is further entangled through use of the state's compulsory public
school machinery. 333 U.S. at 212. Under state law, children are obliged to be
in school. When religious activities take place in school, it is state law which
mandates students to be in that religious environment. More entanglement occurs
through the inevitable participation of school teachers and other state officials
in these exercises. At a minimum, the state has a duty to supervise its students
while on school premises. Thus, school officials must take attendance at the
voluntary religious activities and supervise them to make sure students are
safe. 'See Lubbock V. Lubbock, 669 F. 2d 1038 (5th Cir. 1982), cert. denied, 51
U.S.L.W. 3533 (Jan. 17, 1983) (unconstitutionality of school policy permitting
- 7 -
students to gather before or after regular school hours for religious purposes);
Brandon V. Board of Education, 635 F. 2d 971 (2d Cir. 1980), cert. denied, 454
U.S. 1123 (1981) (voluntary school prayer meeting on high school grounds held
unconstitutional). As noted by the Supreme Court in its consideration of aid to
religious schools in Lemon V. Kurtzman, the very restriction and surveillance
necessary to assure that teachers play a neutral role in these activities gives
rise to entanglements between church and state. 403 U.S. 602, 620-621 (1971).
Here, however, there is even more potential for entanglement because teachers and
school officials need not play a neutral role in their supervision of these reli-
gious activities. Because section 1 of this proposed amendment does not restrict
itself to student silent prayer or meditation but speaks, rather, of "persons,"
under this amendment, teachers and school officials too, would have rights to
worship during the school day. Thus, under this amendment, during the school day
the entire school, including all teachers and the principal, could pray together
in unison and this would be deemed constitutional. This involvement of state
employees in religious activities constitutes fatal entanglement under the
Establishment Clause. Teacher supervision of or participation in religious
activities is entirely different than such supervision of or participation in an
athletic event. Athletics are not a matter of faith thus, school authority
participation in such clubs does not provide a stamp of government approval. In
contrast, as recognized in the Establishment Clause, government support of reli-
gion produces a different, impermissible result.
Thus, this proposed amendment unconstitutionally creates an establishment of
religion. The compelling government interest in preventing such an establishment
vitiates any so-called free speech interests here. Unlike the situations in
Widmar V. Vincent, 454 U.S. 263 (1981.) or Tinker V. Des Moines, 393 U.S. 503
(1969) where there were free speech concerns and no establishment concern was
- 8 -
found, here we have a clear countervailing Establishment Clause interest, a fatal
defect of this proposed amendment.
As to the Free Exercise claim, concerning this proposed amendment, which
maintains that failure to pass this amendment permitting voluntary prayer or med-
itation would constitute prohibition of the free exercise of religion, it is
clear that this claim is a specious one. The Free Exercise Clause in no way man-
dates the proposed amendment at issue today. Under the First Amendment's Free
Exercise Clause, a school is obliged to provide religious facilities only if its
failure to do so would effectively foreclose a person's practice of religion.
Here, there is no problem with students being foreclosed from practicing reli-
gion. Students attend school several hours a day, five days a week, nine months
out of the year. All the remaining time is available to students for their par-
ticipation in religious activities at places other than state supported schools.
See Lubbock V. Lubbock, 669 F. 2d 1038, 1048 (5th Cir. 1982), cert. denied, 51
U.S.L.W. 3533 (Jan. 17, 1983).
As to those who would distinguish the meditation or silent prayer permitted
by this proposed amendment from other forms of prayer, it is clear that this dis-
tinction is a hollow one and that meditation and silent prayer constitute reli-
gious worship. A fixed period of silence, always at the same time with a teacher
presiding bears the hallmark of a religious ritual. The only other instance one
can point to where a group of children would be standing or sitting in silence at
a fixed time with a leader would be in their respective churches or synagogues.
Indeed, for various religions such as the Quakers, a "moment of silence" is the
major component of their religious exercises. For virtually all religions,
including Judaism, a "moment of silence" is at least a significant portion of the
prescribed liturgy. The fact that this exercise occurs in the public schools
- 9 -
during school hours constitutes an unconstitutional establishment of religious
activity in our public schools.
For these reasons, as a matter of constitutional law, this amendment which
provides for religious worship in the schools cannot stand. Notions of "equal
access," while appealing superficially, gloss over the special concern of our
Founding Fathers with religous freedom - unencumbered by government approval or
disapproval. This special treatment of religion in the eyes of the law is no act
of discrimination, it is an indication of an historic national priority.
In the words of Justice Frankfurter:
The public school is at once the symbol of our democracy and
the most pervasive means for promoting our common destiny.
In no activity of the state is it more vital to keep out
divisive forces than in its schools, to avoid confusing, not
to say fusing, what the Constitution sought to keep strictly
apart.
McCollum V. Board of Education, 333 U.S. 203, 231 (1948).
Thank you. I will be happy to answer any questions.
STATEMENT OF
JOHN H. BUCHANAN, JR.
ON BEHALF OF
PEOPLE FOR THE AMERICAN WAY
BEFORE THE SENATE JUDICIARY COMMITTEE
ON PROPOSED SCHOOL PRAYER AMENDMENTS
June 27, 1983
Mr. Chairman and Members of the Committee:
My name is John Buchanan and I am here today on behalf of People
For the American Way, a nonprofit, nonpartisan, educational project
formed in the fall of 1980 to protect and promote Americans'
constitutional freedoms, especially those contained in the First
Amendment. I am pleased to appear today on behalf of PEOPLE FOR to
present our views on the proposed amendments on school prayer.
1015 18th Street, N.W.
Suite 300
Wash., D.C. 20036
Telephone 202-822-9450
A Project of Citizens for Constitutional Concerns, Inc.
-2-
We are opposed to this and any other attempt to amend the First
Amendment, but we welcome the opportunity to participate in this
debate. It is a sign of the health of this society that once more we
are arguing over the meaning of the First Amendment as it relates to
religion. British Ambassador James Bryce observed about Americans one
hundred years ago that Americans have no two identical opinions, only
a favorable one, on the principle of religious freedom, voluntary
religious life, and a distancing between church and state. Each time
Americans engage in this debate, we are reminded of the rich diversity
of religious faiths in the United States and of our Founders' wisdom
in drafting the First Amendment that has SO well protected our rich
diversity.
However, it is somewhat troubling that we are today talking about
amending the very constitutional amendment that allows me to sit here
and petition my government. The awesomeness of tampering with any
part of the First Amendment should give us all pause.
When we talk about amending the Bill of Rights, it seems to me
that a very heavy burden of proof should be required of those
advocating the change. The proponents of the school prayer amendments
have failed to make their case primarily because they misstate what
the law is today and what their amendments would do, if passed.
There may be some sociological principle that the higher the
emotional content of an issue, the greater the number of
misrepresentations and misstatements about the issue. If there is not
-3-
such a principle, then we should invent one for the school prayer
debate. The misstatements are legion. I will discuss five.
(1) President Reagan says that the Supreme Court "has
effectively removed prayer from our classrooms"-
BUT - it is only government-prescribed, institutionalized
prayer that the court has proscribed.
(2) The President has maintained that his amendment will restore
the right to pray-
BUT - on this very day students can if they wish, pray
either singularly or in groups in public schools or other
public buildings without violating the Constitution, subject
only to a very few limitations:
religious exercises cannot interfere with the
school's other activities;
the prayer cannot be sponsored by, or appear to be
sponsored by, the governing body; and
the prayer must be truly voluntary.
(3) Prayer amendment proponents claim that they want to restore
a widespread practice in public schools-
-4-
BUT - most children in the West and Midwest never engaged
in prayer before the Supreme Court's decision in 1962. [See
attached L.A. Times article of 8/27/82]
(4) Some prayer advocates even go so far as to blame the decline
in our schools on the Supreme Court decisions of 1962 and
1963-
BUT - this cause and effect logic is best dealt with in
humor. As Martin Marty has reasoned:
Why did everything go wrong when everything went wrong?
I think that the divorce rate rose shortly after the
invention of the Electronic Church. Check the
coincidence of the dates. When born-again celebrities
started writing born-again autobiographies, teen-age
pregnancies increased; and when fundamentalists started
writing sex manuals, the Vietnam War accelerated.
Didn't you notice the cause-and-effect relation?
(5) Proponents claim the amendment is needed because the Supreme
Court has banned all religion from public schools-
BUT - the only practices prohibited are mandatory religious
exercises. Not the study of religion or religious
materials. For example, students may and do study the Bible
for its ethical, literary, and historical qualities; they
can and do study comparative religion; they can and do
recite officially approved anthems with declarations of
faith in a Deity.
-5-
Neither the Bible nor moral instruction has been banned
from the schools. Nor is there a ban on students meeting
voluntarily for religious reasons. In the recent 7-2
decision of Widmar vs. Vincent, the Supreme Court said that
religious activities are permissible on public school
property.
The amendment we all testified against last year and which was
resubmitted this year as S.J. Res. 73 has been effectively dissected
and discarded. The latest version proposed by Senator Hatch should be
viewed in one of two ways. Either it is basically the same as the
President's amendment, as some who wanted to testify were told, and
therefore is subject to the pitfalls outlined above, OR it is totally
meaningless. Meaningless because equal access is already to be found
in the Constitution and periods of silent meditation in public schools
have never been found to be unconstitutional.
What I find disturbing is the lack of appreciation of the genius
of the founders in crafting the First Amendment, especially in light
of the way it has worked for the past 200 years. Let us recognize
that the United States has avoided the secular strife of the Northern
Irelands, the Irans, the Indias and the Pakistans, thanks in large
part to the tradition of the First Amendment. There were times in the
not so distant past when the government tracked down people who
believed as I do as a Southern Baptist. It was not too long ago that
Baptist ministers were beaten, imprisoned and run out of town in the
-6-
Colony of Virginia for preaching doctrine at variance with that of the
established church. Government can be benevolent, but government can
also be bigoted. Some forces behind this amendment could take us back
to the day when one person's religion would be imposed on another.
Too often recently have I heard school prayer proponents make
statements not unlike that of Deputy Attorney General Edward Schmults:
"We must teach minorities to respect the right of the majority." How
frightening that statement is and how antithetical to our history.
And who knows who will be in the majority or minority tomorrow.
I am also very concerned about what the passage of this amendment
might mean for our schools - already so overburdened. With today's
problems, the last thing administrators, teachers, and students need
is to be thrust into sectarian strife. A recent editorial in USA
Today (5/18/83) said it well:
It is a shame for Americans to waste so much passion when SO
many more important battles need to be fought. The real
peril facing education has nothing to do with Bible teaching
but, as a national commission recently pointed out,
mediocrity in the schools.
When schools become a battleground for adult passions and
prejudices, children are the inevitable casualties. It is
their parents who need to learn one of the more elementary
Bible lessons: Love thy neighbor.
Once again, I find myself in agreement with John F. Kennedy. In
a news conference two days after the 1962 Supreme Court decision on
prayer, President Kennedy said that the "easy remedy" for Americans
-7-
against the edict was to "pray a good deal more at home and attend our
churches with a good deal more fidelity."
Mr. Chairman, the religious instruction of children is the
responsibility of parents and their churches. It is clearly neither
the responsibility nor the constitutional right of government or the
public schools. Protecting the constitutional rights of American
citizens is the solemn responsibility of the courts and the Congress.
We at People For the American Way prayerfully hope that the
Congress will take no action to dilute the First Amendment, so hard
won by our Founders, so protective of our sacred rights and so much
more important to the welfare of our children and of their children's
children than government-sponsored prayers in school could ever be to
anyone's child.
Mr. Chairman, we urge that the Committee not report and the
Senate not pass S.J. Res. 73.
Resurrected Survey Belies Call for the
Return' of School Prayers
By JOHN DART, Times Religion Wn
Administration Disputed
Contrary to the Reagan Adminis-
An opponent of the amendment,
tration's claims that its proposed
the Americans United for Separa-
Reagan reads: Nothing in this
school prayer amendment would
tion of Church and State, cited the
Constitution shall be construed to
restore a widespread practice in
Dierenfield study in disputing the
prohibit individual or group prayer
public schools, most children in the
Administration's view of the past,
in public schools or other public in-
West and Midwest never uttered an
said Albert Menendez, research di-
stitutions. No person shall be re-
amen in class before the Supreme
rector for the organization.
quired by the United States or by
Court's 1962 ban.
But Menendez said he has heard
any State to participate in prayer."
LATIMES
A seldom-cited survey taken 22
few other participants in the school
James C. Corman, a former con-
years ago has resurfaced recently to
prayer testimony and public de-
gressman from the San Fernando
dispute a central rationale for legal-
bates cite figures on how prevalent
Valley and now a Washington at-
izing "voluntary" prayer in public
prayer had been in schools. In some
torney, insisted to the Senate Judi-
8/27/82
schools.
states, including California, rell-
clary Committee on Aug. 18 that
The study indicated that home-
gious devotions had been barred by
"no child has ever been prohibited
room devotionals were a common
educational codes well before 1962.
from praying in the public schools."
practice only in the Northeast and
Attorney Leo Pfeffer, a longtime
In other words, a child may say
the South. But more than 91% of
Jewish spokesman for principles of
an inaudible prayer in class. But
the school systems in the West and
church-state separation. has usual-
that is unsatisfactory to prayer
ly said prayers were being said to
backers. "How is such a policy su-
one-third to one-half of the nation's
perior to that of an atheistic state
Research assistance for this
public schools before 1962. Menen-
like the USSR?" asked one
story was provided by Lois Ward.
dez said that estimate matches the
evangelical newsletter.
Dierenfield findings that 33% of
Television evangelist Pat
74% in the Midwest said none of
Robertson echoed many proponents
their schools conducted prayers in
by pointing to polls which show
class, according to the survey by
U.S. school systems had prayer,
most Americans favor a prayer
Richard B. Dierenfield of Macales-
17% had some schools using prayer
amendment. Church officals who
and 50% had none.
ter College in St. Paul, Minn.
have opposed it "do not speak for
His study, based on a 50% return
Chances Called Slim
the rank and file of the American
of 4,000 questionnaires, was pub-
The proposed amendment's
people," Robertson asserted.
lished in 1962, the year that the U.S.
chances for congressional approval
Teen-Agers' View Differs
Supreme Court first ruled against
this year are slim, analysts say, be-
Recent Gallup Polls show that of
state-sponsored prayers for devo-
cause of the lack of time left before
Americans familiar with the pro-
donal purposes. The court reaf-
an expected early October adjourn-
posed constitutional amendment
firmed its ruling in 1963.
ment in this election year.
79% are in favor and 16% oppose.
Frequent Legislative Attempts
While some Senate activity is ex-
That ratio differed from that of
Legislative attempts have been
pected after Labor Day, the chances
teen-agers, asked by Gallup poll-
made frequently since then to per-
of the amendment getting out of
sters if they would favor regular
mit prayer in some form in public
committee to the House of Repre-
time set aside for prayer in their
schools. The argument usually
sentatives floor are "nil," according
public schools; 45% were opposed
turns on whether the First Amend-
to Forest Montgomery, counsel for
and 42% in favor.
ment stricture against government
the National Assn. of Evangelicals
That same Gallup Associated
"establishment" of religion would
public affairs office in Washington.
Press Youth Survey discovered that
8% of teens who attend public
Many of the same arguments for
e violated, as the Supreme Court
and against prayer in schools are
aid previous practices did.
sure to be recited again before the.
schools say prayers are said at a
President Reagan fulfilled a cam-
98th Congress, if the measure fails
regular time-despite court rulings.
aign promise last May by present-
this year.
A frequently cited objection to al-
1g a proposed constitutional
More accurate arguments and
lowing school prayers is that no
mendment to permit voluntary
some fine-tuning of terminology
meaningful prayer could be found to
chool prayer.
are in order, participants indicate.
satisfy the parents of children wish-
A White House background pa-
ing to participate because of the re-
er said school prayers had been "a
Amendment Quoted
ligious diversity in America.
idespread practice for 170 years"
The NAE's Montgomery said that
x Gallup has found, however, that
nd Reagan's message to Congress
his organization, which backs a
relatively few Americans look to
aid the proposed amendment
E
prayer amendment, uses the word
the schools. and progressively less
ould "allow prayer back in the
"restore" but meaning "to restore a
to the church. for spiritual develop-
chools."
better balance between the estab-
ment of their children.
A similar motive was mentioned
lishment and free exercise of reli-
A "meaningful" prayer in the
y U.S. Deputy Atty. Gen. Edward
gion clauses in the First Amend-
schools thus appeared unimportant
Schmults in testimony before the
ment."
to most respondents. who tended to
enate Judiciary Committee on
The amendment proposed by
my they caw to reason a dany
ug. 19.
chools and communities the appor-
tunity to conduct devotional
Are homeroom devotional services held in the schools of your system?
1 0 1990 survey
East
West
All
68.%
Midweet
Some 11.83%
All schools
2.41%
All schools
8.40%
No
19.83%
Some schools
6.21%
Some schools
19.55%
No schools
91.38%
No schools
74.05%
South
All schools
00.53%
Some schools
28.16%
No schools
11.32%
Same: Telepion in American Public Scheals," by Richard a. Disrenfield.
2
F
2
LUTHERAN COUNCIL IN THE USA
475 L'Enfant Plaza West, S.W.
Suite 2720
-
Washington, DC 20024
202/484-3950
TESTIMONY OF THE
LUTHERAN COUNCIL IN THE USA
BEFORE THE
COMMITTEE ON THE JUDICIARY
OF THE SENATE
OF THE UNITED STATES
OPPOSING THE PUBLIC SCHOOL PRAYER AMENDMENTS
A. SUBMITTED BY PRESIDENT RONALD REAGAN (S.J. Res. 73)
B. SUBMITTED BY SENATOR ORRIN HATCH
JULY 27, 1983
Presented by the Reverend Charles V. Bergstrom
Executive Director
Office for Governmental Affairs
A COOPERATIVE AGENCY OF THE AMERICAN LUTHERAN CHURCH, ASSOCIATION OF EVANGELICAL
ITHERAN CHI IRCH IN AMERICA AND LUTHERAN CHURCH-MISSOURI SYNOD
Statement of Charles V. Bergstrom
Lutheran Council in the USA
To the Judiciary Committee of the U.S. Senate on
Constitutional Amendments on Prayer
A. Submitted by President Ronald Reagan (S.J. Res. 73)
B. Submitted by Senator Orrin Hatch
My name is Charles V. Bergstrom. I serve as Executive Director of the
Office for Governmental Affairs, the Lutheran Council in the U.S.A. On behalf
of the Council, I express appreciation to the Senate Judiciary Committee for
the opportunity to testify in support of the Supreme Court decision favoring
the voluntary and personal nature of prayer. I speak in strong opposition to
the proposed amendments to the U.S. Constitution dealing with prayer in public
schools. I am speaking on behalf of three church bodies of the Lutheran Council:
The American Lutheran Church, headquartered in Minneapolis,
Minnesota, composed of 4,900 congregations having approxi-
mately 2.4 million U.S. members;
The Lutheran Church in America, headquartered in New York
New York, composed of 5,800 congregations having approxi-
mately 2.9 million members in the U.S.; and
The Association of Evangelical Lutheran Churches, head-
quartered in St. Louis, Missouri, composed of 275 congre-
gations having approximately 110,000 U.S. members.
These Lutheran church bodies continue to maintain that the proposed constitutional
amendments are unnecessary from a religious point of view and unwise from a public
policy perspective.
The Lutheran church bodies I represent are aware of the serious theological
and public policy difficulties which arise when government mandates religious
exercises in public schools. Since the landmark decisions of the Supreme Court
in 1962 and 1963 (Engel and Schempp cases, 370 U.S. 421 and 374 U.S. 203), these
churches have consistently resisted legislative attempts to circumvent the court's
actions or to enact a prayer amendment to the U.S. Constitution. This activity
has been undertaken carefully and deliberately. Within these church bodies, con-
sideration has been given to the school prayer issue by lay persons and members of
the clergy, by individuals within our congregations and staff of regional and nat-
ional church conventions at which congregational representatives gather, and sub-
sequent implementation has taken place according to the churches' constitutions and
bylaws. It represents the end result of an organized and democratic process which
is acknowledged as legitimate by members of these church bodies.*
*This testimony is based on statements of the Lutheran churches on prayer in
public schools, two of which date back to 1964: "Prayer and Bible Reading in the
Public Schools" (Lutheran Church in America) and "Prayer in Public Schools" (The
American Lutheran Church). Since that time, the position articulated in these
statements has been repeatedly reaffirmed by the Executive/Church Councils of these
bodies and by their biennial conventions.
-2-
INAPPROPRIATE RELIGIOUS PRACTICE. Our position on school prayer reflects
our theological and biblical conviction that not only are prayers in public
schools not essential to the cultivation of religion in our youth, but in fact
such religious practice can be harmful, especially when offered by an atheist
or imposed on a person of different faith. The church bodies I répresent main-
tain that the nurture of religious faith belongs in the home and in the church,
not in the public schools. The families, not the school boards, have over-
riding responsibility for their children's religious education. Lutheran
churches share a deep concern for the families that it's religious life be
centered at home and in church. We would make the following assertions:
1. We object theologically to "non-denominational prayers" which may
uncritically mix nationalism and religion. As the Lutheran Church in America
statement cited above says so clearly, "The more we attempt as Christians or
Americans to insist on common denominator religious exercise or instruction in
public schools, the greater the risk we run of diluting our faith and contribu-
ting to a vague religiosity which defines religion with patriotism and becomes
a national folk religion."
2. We believe that the purpose of prayer is to praise and petition God, not
to serve the secular purpose of creating a moral or ethical atmosphere for public
school children. Prayer is communication with God which should change the person
who prays--but it is not a tool to be used to "christianize" or "moralize" public
education. Thus, the intent in sponsoring public school prayer is vitally im-
portant, and the Lutheran churches I represent resist any attempt by legislators
or by school authorities to inject religion into the public classroom in an effort
to create a wholesome milieu for public school learning or to overcome immorality,
as some independent preachers claim it should. Biblical teaching is clear and
Christ's example is ultimate. Lutherans are offended by untheological calls to
"put God back in school," or claims that such efforts are "evangelical." They are
political. They represent a terrible misunderstanding of prayer and
ask members of Congress to act on a religious matter that divides people.
Prayer can be manipulative and used as a tool for trying to "convert" unbelievers
and making this a "Christian Nation"-to "Christianize America." That is a shame-
ful affront and an embarrassment to the church. The Bible invites Christians
to pray alone and in the congregation, not as a public or educational interlude.
3. We perceive no need to "put God back into education." He is there. As Luth-
erans in the U.S., we affirm the principle of "institutional separation and func-
tional interaction" between church and government and recognize the distinctive
calling and sphere of activity of each institution. We believe that God is active
and powerful in all human affairs and operates through human institutions which
maintain peace, establish justice, protect and advance human rights, and educate
children--all proper concerns of the government. God's involvement in the good
things of His creation, including education, is dependent on His love for us, not
on government-sponsored prayer in public schools or other public buildings. One
does not become more moral or evangelical by pushing for prayer in public school.
Quite the opposite can be true.
4. We are concerned about the quality of public school education and understand
it to be inadequate when it is premised either on indifference or antagonism to the
religious elements in history, in community life or in the lives of individuals.
While the Supreme Court has ruled state-mandated prayer unconstitutional, it has
not ruled out the study of religion in public schools. In this area, Lutherans see
a positive challenge to interact with public school educators in order to develop
programs which acknowledge the religious and moral dimensions of life while also
respecting the larger religious neutrality mandated by the Constitution. As a
parish pastor and in my present position I have supported public education and
-3-
worked with school authorities.
The Lutheran church bodies I represent point out that the historical situation.
in the United States has changed since the early days of the Republic when under-
lying religious beliefs were often assumed. The influx of immigrants, with varying
traditions and creeds, and a range of other historical circumstances have contributed
to a society which is thoroughly pluralistic. The Lutheran churches view this situ-
ation as a challenge and not a threat--an opportunity to articulate clearly the tenents
of our faith in this pluralistic culture. The "Founding Fathers" made clear the
difference between reference to God and establishing Christianity as the one religion.
Promotors of homogenized prayers exagerate the previous practice of prayer in our
schools. Macalester College had a study showing that in the Far West 91 percent of
the schools had no. prayers. In the Midwest, 74 percent had no prayers. The court
decisions did not unleash immorality, as some claim. We were always as we are now.
Many in a religious minority can describe for us the unfair pressure on children to
pray "like everyone else."
QUESTIONABLE PUBLIC POLICY. The Lutheran churches I represent also recognize
the public policy difficulties prayer in public school create in terms of the re-
ligious rights of the individual and the welfare of the community as a whole. As
Lutherans in the U.S., we cherish the guarantees of religious liberty which were
written into the Constitution. We affirm the fact that the government safe-guards
the rights of all persons and groups in our society to the free exercise of their
religious beliefs and makes no decisions regarding the validity or orthodoxy of any
doctrine. These religious freedoms are guaranteed to all, to members of traditional
religious groups, nonconformists and non-believers. We recognize that, given our
pluralistic culture, religious exercises in public schools infringe on the rights
of some individuals and groups in society and invite sectarian divisiveness in the
community. There is nothing holy or helpful in efforts to make this a "Christian"
nation by school prayer. It is indeed questionable that this can do anything but
harm religious faith. Our constitution is to protect the individual child who is
different from the majority, not to give the religious majority power to bring
their practices into the realm of education.
The changes mandated by the 1962/63 Supreme Court decisions should be under-
stood in a positive rather than a negative light by those concerned about religious
freedoms. A 1971 statement of the Church Council of the American Lutheran Church
affirming these decisions expresses this sentiment and focuses on the freedoms
protected by the Court rather than the restrictions posed:
We are free to pray in our own words to our own God. We are
free to read the Bible in the version we prefer. We are pro-
tected against having to join in devotional exercises decreed
by governmental authorities. We are free to pray in public
and to read the Bible in public places. We cannot, however,
force others to join us in such expressions of our religious
faith.
The folowing Lutheran Church in America statement, reaffirmed in July 1980 by
representatives of the congregations gathered in convention in Seattle, Washington,
discusses the public policy implications of prayer in public schools:
A due regard for all religious faiths and also for non-believers
and nonconformists of all kinds makes it imperative that the public
schools abstain from practices that run the risk of intrusion of
sectarian elements and divisiveness. The public schools serve a
-4-
unique and valued place in helping to build a civic unity despite
the diversities of our pluralistic culture. It should be noted
that when the state deeply involves itself in a religious practice
in the public schools, it is thereby not only appropriating a func-
tion properly served by the church and the family, but subjecting
the freedom of believers and unbelievers alike to the restraint that
accompanies the use of governmental power and public facilities in
the promotion of religious ends.
The Supreme Court has not prohibited voluntary prayer in schools--indeed,
there is no way it could ban personal communication between an individual and
God. What has not stood up to judicial scrutiny are "religious" sessions man-
dated by law or organized by school officials. Contrary to the statement of
President Reagan, children can be harmed by classroom prayer or the need to
leave a classroom because of prayer.
The question of just what comprises voluntary prayer is central to this
issue. The Lutheran churches, like the courts, do not believe that any school-
organized prayer sessions can be completely "voluntary." Children attending
public schools are there under compulsion of public law. Public school facil-
ities are used, and the teachers-symbols of authority in the classroom--may
supervise the exercise. These factors combine to operate with coercive force
on young and impressionable children, inducing them to take part in these ex-
ercises, despite freedom to be excused from participation. That cannot be com-
pared with adult prayer in Congress or reference to God on coins. Persons with
a genuine regard for prayer and the Bible object to having their children engage
in these exercises when they are mandated by the compulsion of law. Prayers of
one religious body are very different from another. Our fundamental question is,
"Whose prayers are to be offered?" This question has been too easily ignored in
in the promotion of these amendments.
Those promoting constitutional amendments already differ among themselves as
to what type of "voluntary prayer" would be acceptable. Some would find inter-
denominational prayer acceptable, while others would insist on non-denominational
prayer; yet others ask for silence. To deal with these religious differences,
several have suggested that "community standards" be the means for determining
actual practice in the public schools. However, the "community standard" argument
ignores the reality and the depth of these religious differences, especially as
they regard religious minority groups. Religious differences, even among ad-
vocates of school prayer, will surely find expression in diverse practices
offensive to some and leading to harmful and bitter contentions. The town of
Bristol, Virginia's divided community in 1983 shows the results of bringing re-
ligious practice into public school under the unrealistic promises of: "bringing
God back into school" or "no person shall be required to participate." (in prayer)
The Lutheran churches' belief in God and the variety of channels through
which He works is biblical and personal. We believe we are carrying out God's
work through the church's evangelical ministry of salvation. Yet another facet
of our response to God's Word is working with government to establish justice in
the world for all groups and for all individuals-those who believe in God and
those who do not. However, these two ministries of Lutheran churches are not to
be uncritically confused; different means are appropriate to achieve the goals of
our different minístries. Prayer is a personal communication with God, to be used
because of our faith in God; it is not an appropriate public policy tool. Con-
versely, in our historical situation, the public schools are not an appropriate
channel for evangelization. Our understanding of both of these ministries of the
church leads us to strongly oppose the proposed constitutional amendments on prayer
in public schools.
AMERICAN ASSOCIATION
OF SCHOOL ADMINISTRATORS
TESTIMONY OFFERED TO THE SENATE SUBCOMMITTEE ON
SCHOOL PRAYER
by
Ira J. Singer
Superintendent of Schools
Herricks Public Schools
New Hyde Park, New York
on behalf of
American Association of School Administrators
6/27/83
(703) 528-0700
1801 North Moore Street Arlington, Virginia 22209
Mr. Chairman. Committee Members. I am here today representing the American
Association of School Administrators, the professional association of local school
superintendents and other school administrators.
It is my honor and privilege to address Senators of the Congress of the United
States and discuss the proposed constitutional amendments on school prayer.
To come directly to the point, AASA opposes both Joint Resolution 73 and the
alternative proposed by the Constitution Subcommittee of this Committee for
silent meditation and equal access to school facilities. More specifically AASA
opposes putting such matters in the constitution where they become law for
all citizens throughout the nation.
The AASA Committee on Federal Policy and Legislation opposes Senate JT
Resolution 73 because we believe it to be contrary to the principles upon which
this country was founded.
In school we teach the history of our nation through the beliefs and views of
our Founding Fathers, views which were not consonant with the substance or
intent of Resolution 73 or the subcommittee alternative.
For example, Thomas Jefferson was a staunch advocate of civil rights and, in
the 1st Amendment, fought for the protection of the rights of everyman from
religion not for religion. He was terribly concerned about the government recog-
nizing a one and only righteous way to heaven. He abhorred such talk. He
was =
sworn against tyranny of the minds of man." That famous quote was
uttered about the tyranny of religion, not patriotism, as it is so often taught
in our schools. To zealous Calvinists who denounced him as an atheist, Jefferson
charged that "
the effect of religous coercion would be to make one-half
the world fools and the other half hypocrites."
In Orlando last March, President Reagan stated, "When our Founding Fathers
passed the 1st Amendment they sought to protect churches from government
interference " To the contrary, the 1st Amendment, was written to protect
the individual citizen, not the church, from religious coercion of any form.
This was Jefferson's theme.
In commenting upon religious freedom in the Virginia Acts, Jefferson wrote that
"diversity is the law of nature." He attacked those who would force religious
dogma on others charging them with an " impious presumption to assume do-
main over the freedom of others depriving them of their liberty." He stated that
"
our civil rights have no dependence upon our religious beliefs ."; and
that
" no man shall be compelled to frequent or support any religious ministry
whatsoever." Jefferson was a highly moral man who held that the opinions of
atheists should have equal value to those who professed religious beliefs. For
these and other statements, he was denounced by the Colonist clergy in New
England as an atheist. Jefferson's retort was that 11
no mind beyond mediocrity
bothered to improve itself in New England."
In fact, revisionist interpretations have gone so far as to lead one federal district
judge to proclaim that, in the Engel vs Vitale Case, the Supreme Court " ... erred
in its reading of history " and that the constitutional wall of separation between
church and state is a " myth." A state senator, in praising this judge's opinion,
held that the framers of the constitution " did not believe in the separation
of church and state " and one nationally prominent clergyman has said that
school prayer was "... in the intent and mind of the 1st Amendment framers."
What would Jefferson say to that?
These may be fond wishes, but they are not facts. In 1785-86, Madison and Jeffer-
son, in obtaining the Virginia Bill for Religious Liberty " .opposed all religious
establishments by law on gounds of principle." When in 1784, the religious conser-
vatives of Virginia tried to revive the idea of multiple church establishment in
a tax bill designed to support "Teachers of the Christian Religion", James Madison
was the chief opponent, arguing with all his being that an assessment on all citizens
to pay teachers of religion was clearly tantamount to " an establishment
of religion" and therefore indefensible.
My testimony here is particularly fitting since I am the Superintendent of Schools
of the Herricks Public Schools in New Hyde Park, New York, the site of the
landmark Engel vs Vitale School Prayer Decision by the Supreme Court in 1962.
That prayer was voluntary and non-demoninational to be recited as part of opening
day exercises. It was composed by state officials and authorized and recommended
by the State Board of Regents. The Supreme Court found it to be unconstitutional.
Liberally quoting from the teachings and writings of our Founding Fathers, Justice
Black, writing the majority opinion, stated, "The inclusion of a classroom prayer
composed by state officials in a daily program for public schools violates the
prohibition of the First Amendment, operative against the states by virtue of
the Fourteenth Amendment, against the making of a law 'respecting an establish-
ment of religion,' even though the prayer is denominationally neutral and its obser-
vance on the part of the students is voluntary." Justice Black also stated,
"
neither the fact that the prayer may be denominationally neutral nor the
fact that its observance on the part of students is voluntary, served to free it
from the limitations of the Establishment Clause."
Aside from the court's opinion, the practical implications of a constitutional amend-
ment requiring voluntary prayer in the classroom are nightmarish. How is a child
excused from class if that child does not wish to participate in this voluntary
activity? Conformity is a powerful force among children of all ages. In some
places, a child would have to be truly heroic to ask to leave the room. And
the teacher who does not believe in this practice must now police it. Will his
or her attitude become more powerful than the compulsion to pray or be excused?
How will teacher-parent relations be affected when they are in disagreement
over the product and the process of the proposed amendment? The prospects
of disruption, litigation, non-compliance and ridicule are, to say the least, dis-
quieting.
Since 1962, the Court ruling on voluntary prayer has withstood the test of time
through a variety of assualts and circumventions. Black did not err in his reading
of history but testified for our Founding Fathers in restating the Jeffersonian
principle of a wall of separation.
Besides, Resolution 73 fails to recognize the contemporary reality of the American
school house where Christians, Jews, Muslims, Hindus, Taoists, and other children
of disparate religions, as well as those who profess no religious affiliation, coexist
in the same classroom. Collective or unison prayer, voluntary or otherwise, would
trample on the beliefs of many students and result in an atmosphere of stress
and dissension.
As for the formal adoption of a period of silent prayer, AASA is opposed to
a constitutional mandate for such practice. The courts, for the most part, have
found the period of silent prayer or meditation to be in violation of the Establish-
ment Clause of the 1st Amendment. It is true that individual school districts
can be found where such practice is tolerated. However, in Alabama, periods
of silent prayers were recently overturned. In New Mexico, a federal judge ruled
in February that a New Mexico law allowing a minute of silence in the schools
is a violation of the Establishment Clause. In his decision, the judge wrote
The illness lies in the public perception of the moment of silence as a de-
votional exercise. If the public perceives the state to have approved a daily
devotional exercise in public school classes, the effect of such action is the
advancement of religion."
In Massachusetts, the legislature was told by its state supreme court that silent
meditations as opposed to prayer would not change the unconstitutionality of
the act since the law contemplates that, at least in some instances, prayers
would be orally recited. The court stated that when prayers are to be heard
in the classrooms of the public schools of the commonwealth, = it is more
than a strain to argue that religion is not being advanced in the sense of the
Constitution." In other words, during the moment of silence, individuals will
pray aloud and make religious gestures. The teacher must either allow such
actions or stop them an untenable and inappropriate responsibility either way.
Finally, AASA opposes a constitutional amendment requiring public schools to
grant equal access to school facilities to religious groups throughout the nation.
This is a comparatively new effort to merge church and school. In Bristol, Virginia,
bible study classes are held in the school house immediately before and immediately
after classes. Students volunteer for the classes. Those who do not are required
to go elsewhere in the building during these classes. Court action on this program
is pending.
Recently the Supreme Court declined to hear a case involving the right of the
Lubbock, Texas schools to hold voluntary prayer meetings in school facilities
before or after school hours. Earlier, the U.S. Court of Appeals had ruled against
the practice as a violation of the 1st and 14th Amendments. Specifically the
Court ruled against a Board of Education policy which permitted students to
gather at the school before or after school hours to meet for any " educational,
moral, religious, or ethical purposes ... If so long as the meetings were voluntary.
The Court of Appeals found the directive a constitutional violation since it speci-
fically related to "religion in the schools,"
The courts appear to be rejecting the concept as constitutionally unacceptable,
not out of hostility, but rather a true concern over our heading down a new
road of religious establishment.
Aside from the opinion of the court, the AASA recognizes that various school
districts throughout the country have, at their own risk, entered into contractual
arrangements with religious groups for the temporary use of school facilities,
usually for emergency purposes. A constitutional amendment would complicate
such voluntary decisions and require all school boards, whether they wished to
or not, to grant access to all groups in a way that would surely interfere with
school activities. For example, church related activities, following immediately
upon student dismissal, would be perceived as an integral part of the school's
extra and co-curricular programs. While attendance would be voluntary, it would
be apparent to all students in the school that certain religious activity was authorized
and, fairly judged or not, established by the Board of Education.
Schools could easily become magnets for all religious groups seeking a new home
or additional space. Schools could easily become school-churches. Equipment,
materials, and supplies would be in jeopardy and the smooth flow of instruction
from day to day would be disrupted. Given the random nature of the groups
who would demand access, security would have to be increased and screening
would become a full time job.
In effect, the attention, energy, and time of students, teachers, and school ad-
ministrators could easily be diverted from their primary mission of public education,
impeded by such distractions as multiple religious groups competing for the use
of public school houses.
In summary, the AASA feels that prayer is a very personal experience and religion
an individual matter. Mixing education and religion in the public schools of our
diverse society is not wise. Nor is it sound practice to employ the Constitution
as a handy remedy to appease those who have been frustrated by court decisions.
The Constitution, after all, is the foundation of our national wisdom. The balance
of powers provide recourse through the courts to those who feel that their rights
have been violated by legislative acts. The interplay of the judicial and legis-
lative branches of government has protected the civil rights of American citizens
and sustained this nation's integrity as a democratic society through more than
a century of history. That process should be preserved and the proposed con-
stitutional amendments rejected.