Does free exercise stop at the schoolhouse door?:
Wright, Elliott
VOLUNTARY PRAYER & THE COURT Does free exercise stop at the schoolhouse door? ELLIOTT WRIGHT THE SUPREME COURT of the United States is an inscrutable power that in its own mind may understand how...
...The joint brief, written by Edward M. Gaffney, Jr., of the Center for Constitutional Studies at the University of Notre Dame, argued that Lubbock afforded the High Court an opportunity to "clarify that the historic purpose of the First Amendment Religion Clauses was not to stifle voluntary association for the purpose of engaging in religious activities...
...As late as 1979, the Bible was read daily over public address systems, teachers led prayers and a time of silent meditation was ended with a piped-in "amen...
...The Supreme Court has an obligation to hear a Lubbock-style case, and hope for one with a "cleaner" background is the only legitimate reason for refusing the appeal from the Fifth Circuit...
...The judge found the plan as a whole sufficiently neutral with respect to religion, striking "the correct balance between the First Amendment's mandate against governmental establishment of religion and its protection of the free exercise of religion...
...by excusing dissenters, the decisions contain not one iota on voluntary, non-school-sponsored groups using public space before or after school hours...
...In fairness to the Supreme Court, however, one must not assume the justices meant to say anything by declining Lubbock...
...And maybe the captain of the public school football team should be prohibited from all communal prayer in the "captive audience" settings of small towns and urban neighborhoods...
...One rubric allowed teaching "about" religion and the Bible...
...The Fifth Circuit decision, said the group, was causing " the widespread perception that the lower federal courts are interpreting the Constitution in a way that is hostile to religion...
...BOTH Lubbock and Brandon represent stabs in the legal dark, stumbling and searching for support...
...It flinched in January by declining an appeal on "voluntary" student religious groups in public schools...
...The matter is not judicially closed, and perhaps the Court is waiting for a better test case...
...Brandon was brought by parents unhappy with a school district's refusal to allow voluntary religious organizations before or after school...
...Yet one stream of legal interpretation, found in the Fifth Circuit ruling in Lubbock, has for twenty years fantasized that the Supreme Court outlawed any public school acknowledgment of religion as anything more than a possible academic subject, probably in the history curriculum...
...As mentioned above, the National Council of Churches and the United Presbyterian Church, both opposed to the "prayer amendment," filed a brief asking the Supreme Court to settle Lubbock in favor of the school board...
...In response, the Supreme Court saw fit to be mute.me Court saw fit to be mute...
...The Brandon court allowed that extra-curricular activities fostering free speech clearly serve a good end but it upheld the school board...
...The Court would find it necessary to explain why political free speech is more protected than free religious exercise since in a 1959 opinion (Tinker v. Des Moines) it held that high school students do not "shed their rights to freedom of speech or expression" upon entering a public school...
...of course, it might find the task legally messy...
...Never has the High Court addressed the constitutionality of truly voluntary religious activities at state-supported secondary and elementary schools, an issue at controversy in communities all over the country...
...The fact of Paragraph 4 in a general policy statement on religion in public schools was said to promote religious meetings and, therefore, to serve no secular purpose...
...The ensuing opposition to the new policy focused not on the silent meditation provision but on Paragraph 4, which stated: The school board.permits students to gather at the school with supervision either before or after regular hours on the same basis as other groups as determined by the school administration to meet for any educational, moral, religious or ethical purpose so long as attendance at such meetings is voluntary...
...Now, if in 1983 the High Court wants to embrace the proposition that free exercise stops at the schoolhouse gate it should take a Lubbock-like case and say so boldly...
...Religious content, said the brief, does not abrogate the "valuable civil rights" of free speech and association...
...But nothing can obscure the fact that the Lubbock issue is not answered by the Supreme Court's landmark rulings on prayer and Bible reading in the 1960s...
...If not - if pluralism demands total dereligionized public education - the Court has a duty to sanction and explain the conclusion, thus giving families the choice of keeping children in "religionless" institutions or opting out of public education...
...When the local Civil Liberties Union moved to stop such practices, the board hemmed and hawed and finally came up with a new policy covering several aspects of religion in public education...
...The political dimensions prompted twenty-four senators - Democratic, Republican, liberal, and conservative - to ask the Supreme Court to consider Lubbock...
...In the meantime, the debate over the Lubbock issue within organized religion may not follow the polarized "liberal" and "conservative" positions characteristic of the controversy over the "prayer amendment...
...The senators also blusteringly reminded the justices of proposals to strip courts of the power to exercise authority over certain First Amendment matters, including school prayer...
...A bevy of similar cases are in process, and the issue is a political time bomb...
...The contest in part pits the First Amendment's "no establishment" clause against "free exercise," and lower courts are having trouble reaching a balance between the two...
...The Supreme Court should not quake at threats from one-fourth of the Senate...
...Fifth and sixth graders got Gideon Bibles...
...The Lubbock litigation does have a murky background (but so do many other cases the Court takes...
...By refusing, the Court missed a chance to do its job of adjudicating constitutional disputes, this one made politically hotter by the Court's cold shoulder...
...As close as it could come to a precedent was Brandon v. Board of Education heard in 1980 by the Second Circuit...
...The justification for a federally-funded chaplaincy has always been that military life takes citizens out of normal communities...
...Many Americans - not all of them fundamentalists - believe that the courts are determined not only to "expel" God from the classroom but also to bar any public school recognition that religion exists...
...The circuit opinion honestly said that"neither the Supreme Court nor the appellate courts have addressed precisely the question before us...
...In other words, the appellate judges were fearful that the Lubbock policy was made by school board members with bowed heads and hands on the Bible...
...That happens to make sense, but it must be noted, that, first, military service today is voluntary and, second, the chaplaincy comes much closer to an establishment of religion than would after-hour Bible classes in Lubbock...
...Do courts think students relate only at school...
...The Court could be reasonably expected to show how voluntary religious groups in Lubbock differ from weekly prayer meetings held by the Joint Chiefs of Staff...
...The Fifth Circuit approvingly quoted the Second in a classic statement of judicial overkill: An adolescent may perceive "voluntary" school prayer in a different light if he were to see the captain of the school' s football team, the student body president, or the leading actress in a dramatic production participating in communal prayer meetings in the "captive audience" setting of a school (O'Hair v. Andrus, 613 F2d . . . Cir...
...It was not sure that free speech encompasses religious groups meeting at schools after buses arrive in the a.m...
...therefore, government must provide religious ministries not otherwise available...
...Last year in a Missouri case (Widner v. Vincent) the justices upheld the right of religious groups to meet on state-supported college and university campuses: free exercise and equal access would be violated should public institutions allow political science clubs but not religious organizations...
...or before they depart in the p.m...
...It would have to come up with a good rationale for why high school seniors do not enjoy the same rights as college freshmen...
...The school board in the Panhandle city seems to have ignored the Supreme Court's earlier rulings on government sponsorship of public school devotionals...
...at the same time, should it sit in silence as the "no establishment" and "free exercise" clauses are used against each other in legal forums and everybody's political experience...
...While taking a dim view of classroom prayer made voluntary ELLIOTT WRIGHT is Coordinator of the Project on Church, State, and Taxation of the National Conference of Christians and Jews...
...In the 1960s the Court was concerned with governmentally required or sponsored religious exercises in public schools...
...The Fifth Circuit recognized differences between Brandon and Lubbock (the second did not hinge on what a school district must do or on the free speech issue), yet agreed with the Brandon court that even "the mere appearance" of school involvement in religious activities may indicate to an"impressionable student" that"the state has placed its imprimatur on a particular religious creed...
...Disgust with totally secular education is one reason for the proliferation of "Christian schools" across the land and may help to explain why Catholic parochial school enrollment has increased modestly in some areas...
...To an outsider, the justices' higher reasoning is at times confusing...
...Plaintiffs argued that such meetings must be allowed to safeguard free speech...
...Yes, they pray in the Pentagon...
...1970) . . . Misconceptions over the appropriate roles of church and state learned during one's school years may never be corrected...
...ELLIOTT WRIGHT THE SUPREME COURT of the United States is an inscrutable power that in its own mind may understand how it selects the cases it reviews...
...And what about the military chaplains...
...He did not share the LCLU's particular objections to Paragraph 4. In March, 1982, the Fifth Circuit appellate court, giving special attention to the paragraph, reversed the district, primarily because it did not like the "context" in which the provisions for religious group meetings were articulated...
...The Court both asserts and flinches, and by refusing certain cases often compounds or prolongs legal uncertainties...
...The legal record on religion in public educational institutions is not easy to see these days through the smoke around the proposed "prayer amendment...
...Given the system, only the High Court can finally decide whether voluntary student religious groups in public schools pass constitutional muster...
...This was conceded by the Fifth Circuit in Lubbock and highlighted in an amici (friends) brief filed jointly in the case by the National Council of Churches and the United Presbyterian Church, neither of which is friendly to the "prayer amendment...
...To let the Fifth Circuit opinion stand is not to affirm it...
...That the question in Lubbock begs for a Supreme Court review cannot be doubted on judicial or political grounds...
...another banned oral prayer and devotional reading of Scriptures, though school administrators were given permission to "set aside a short period for silent thought or meditation by students during the day...
...The Lubbock Civil Liberties Union asked a federal district court to block implementation of the new policy...
...In Lubbock Independent School District v. Lubbock Civil Liberties Union, the Supreme Court was asked to review a Fifth Circuit Court of Appeals decision prohibiting off-hour prayer and Bible study in the schools of the Texas city...
...Some significant part of the more liberal churches that generally oppose classroom prayer (oral or silent) are likely to side with advocates of voluntary student religious groups...
Vol. 110 • April 1983 • No. 7
