School Without a Prayer
FRANKEL, MARVIN E.
School Without a Prayer By Marvin E. Frankel THE DECISION of the Supreme Court in 1962 outlawing the bland triviality composed as a prayer by the New York Board of Regents, and the 1963 ruling...
...Then I kind of felt angry because I didn't think it was fair that he should be able to say things like that during school and get away with it...
...These paths for God's re-entry into the public schools have for the most part run into judicial roadblocks, though the cases have not been unanimous and the struggle is not yet over...
...A. Yes...
...What causes doubt and worry is that the coach and the superintendent should have found it justifiable to require that such a lawsuit be brought...
...Q. You say that they read something to you...
...A. Yes, he did...
...To be sure, the time of silence may be used to daydream or ogle, etc...
...School Without a Prayer By Marvin E. Frankel THE DECISION of the Supreme Court in 1962 outlawing the bland triviality composed as a prayer by the New York Board of Regents, and the 1963 ruling against Bible reading in the public schools, led to a thunder of opposition that has kept rolling and resounding over the years...
...The idea of legislatively decreed moments of silence in the public schools has appealed to the lawmakers of more than half the states...
...A. Well, basically they said, they told us how long it was supposed to be and quite a few times they kept saying, 'contemplation, meditation and prayer,' and then toward the end they told us that if we had any religious questions, we would be referred to our parents or to, I think the phrase was 'a leader of our faith,' but I am not exactly sure about the phrasing...
...Q. Okay...
...A. I'm not exactly sure...
...No law proclaimed a specific moment of silence...
...Q. Okay...
...Although the position has never commanded the two-thirds vote in Congress required to launch an amendment, it appears steadily to enlist a large majority in American public opinion polls...
...It may have been a minute, may have been 30 seconds...
...Q. Okay...
...The restoration of prayer in the public schools found its way into the Republican "Contract With America...
...A law professor who vigorously supports a liberally interpreted Establishment Clause has written that laws imposing moments of silence are no problem if they do not prescribe prayer during those moments...
...A number of states in the 1980s enacted statutes to implement this goal...
...Hypocrisy has never seemed a large price to pay for votes...
...A. Uh-huh...
...A. Well, I, not really, I just, I guess I said, I just told him it was my right not to pray and he, I had my rights and he had his...
...Q. Did you say anything to him...
...Q. Okay...
...Q. Okay...
...No student of a public school may be denied their right to personal and private contemplation, meditation or prayer, nor shall any student be required or encouraged to engage in any given contemplation, meditation or prayer as a part of the school curriculum...
...CREDIT THE West Virginia Federal judge, in any event, with enforcing the law against the blunt defiance of the West Virginia Legislature...
...Rhetorical questions don't need answers...
...In a number of instances the state law said nothing at all about prayer, providing only for the brief period of silence...
...Are you a member of the Jewish faith...
...Did you, did you talk with your teacher...
...It has led to a spate of judicial opinions one way or another and a small shelf of scholarly writing...
...Q. Any reason that you didn't or?A...
...A. Well, I felt, you know, hurt...
...The opinion went on to summarize other interesting aspects of the testimony, including these: "A Baptist pastor testified that he objects to prayer 'in a school setting where everyone else is praying as an act of religious faith and so forth, not because one could do that just because everyone else is doing it, it's something one chooses or affirms for himself or herself "The pastor said, 'It tends to trivialize one's religious devotion and that makes it, well, it sometimes borders on sacrilege.' "A 12-year-old boy of the Roman Catholic faith testified he is afraid to challenge his teacher's directions to stand and pray each morning because he might receive demerits for 'doing wrong or disobeying the teacher.' Other witnesses representing the Lutheran, Roman Catholic, Muslim, and Jewish faiths and the teaching and psychology professions also testified in opposition to the amendment...
...And do you know what he meant about going to heaven or going down...
...A third characteristic of the moment-of-silence laws is a common claim of their sponsors: They are merely neutral provisions for a time of repose in the school day, when students can do as they please, even pray if the spiritmoves them...
...Did you participate in the Pledge of Allegiance...
...Ishmael Jaffree, father of two second graders and one kin-dergartner, sued to have the enactment invalidated...
...This first boy told another boy that the Jews only used the Old Testament and they didn't use the New Testament, and this other boy thought that it was really stupid and then there was some period of another, of more speech, more conversation that I don't remember, but then the second boy said something to the effect that, why was he even trying to talk to me because the Jews weren't worth saving because they had killed Christ and that was about the end of it...
...The wall of separation has been a treasure for the polyglot American family...
...Q. Okay...
...courts that have considered the question have held the moment-of-silence statutes unconstitutional...
...The statute struck down in that case provided for a period of silence in the public schools "for meditation or voluntary prayer...
...A House Delegate said: "I believe it is time when we should welcome God back into the classrooms and not by just meditation but by prayer and praise also...
...Granted that Holmes probably had, as usual, a more layered meaning than the one I now take, it does seem remarkably naive to treat the moment-of-silence laws in this innocent fashion...
...A. I don't think there were very many that day...
...I also felt kind of uncomfortable because it's kind of hard to try and tell somebody who keeps on talking that you are not listening to them...
...Anything happen to you in first period...
...Do you remember the substance of any of those, what they did...
...Instead of rallying to the Court's defense, devout legislators and candidates have led the cries of anguish, never stopping to ask whether the spiritual health of the people is nurtured by the banalities that pass for prayer in the schools...
...A.Uh-huh...
...They reflect, though, the relentless pressures that should leave no one smug about the security of the safeguards for minority consciences in America...
...What President Kennedy said in 1962 echoed, if less metaphorically, what Thomas Jefferson had said in the time of the Founders and the Supreme Court had reaffirmed in 1947, and again in the school prayer case of 1962—that the Establishment Clause was intended to place "a wall of separation between church and state...
...The Establishment Clause, properly understood and followed, is a miraculous spiritual boon for America...
...When Jane Doe decided not to participate in the team prayers, the coach had her stand aside at games while the others prayed...
...for then you will have no reward from your Father who is in heaven" (Matthew 6:1...
...The prayer was also said before they left school for games away from home and at critical times in games, like last-second buzzer-beater shots...
...A. No...
...Q. Do you understand the difference between fantasy and reality...
...One other example helps to sharpen the picture...
...The decision thus echoed a long-running debate that remains at most only partially resolved...
...the Federal Court of Appeals embracing Texas heard the case of a junior high school basketball coach who regularly led his girls' team in a recitation of the Lord's Prayer at the beginning and end of each practice session...
...Q. Okay...
...One spectator stood up after a game and yelled, "Well, why isn't she praying...
...A. Science fiction...
...Her history teacher called her "a little atheist" during one classroom lecture...
...Q. What did it mean to you...
...We should cherish and preserve it...
...A New Jersey State Assemblyman sponsoring one of the bills was asked in debate about its effect on atheists...
...Roger Williams had written in defense of religious freedom that there must be a sharp line between the garden and the wilderness, the "garden" being the realm of the spirit and the "wilderness" that of secular governmental authority...
...This has august support, in the Supreme Court and among notable legal scholars...
...Their background leaves no question that their essential purpose is to evade, or fight in the rearguard against, the ban...
...A. Well, he said that you should believe in Christ basically...
...A Senator declared the Supreme Court had "made God unconstitutional...
...And, as I've said, august judges and scholars have accepted this account...
...Incoming House Speaker Newt Gingrich made a proposed constitutional amendment for school prayer the first of his triumphal resolves after the Grand Old Party's landslide victory...
...Q. Do you like fantasy books...
...With the kind of evidence before him, the judge said, the question was a "relatively simple one" under the precedents...
...Q. Okay...
...A. Well, I think it meant that he was saying that certain people were going to all go to heaven...
...President Bill Clinton, shaken and rushing for cover, seemed for an instant to accept the idea, then retreated to the perennial device of a "moment of silence" in the schoolroom...
...As a relevant tangent, nevertheless, one recalls the long stretches of silence, in study halls and classrooms, that characterized life in public school...
...When Catholic clergymen were among the many—along with hordes of politicians—cursing out the Supreme Court for its 1962 decision invalidating the school prayer composed by New York's Board of Regents, his was a calmer voice: "We have in this case a very easy remedy and that is to pray ourselves...
...The West Virginia amendment said: "Public schools shall provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation or prayer...
...No occasion arose when anybody was questioned about the failure to use the silent time for praying...
...One State Senator explained: "To me the separation of church and state concept is a myth, like evolution...
...A. Well, we all went to first period...
...A more or less standard law simply ordered a "moment of silence" during the school day, when every student individually could think about nothing, solve mathematical puzzles, fantasize about sex, or even—perhaps—pray...
...How long did the, did the period last...
...And I would think that it would be a welcome reminder to every American family that we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of all of our children...
...There is no such provision in the Constitution...
...A. I tried to explain to him that I had my own beliefs and that I went by, I followed my beliefs and not his and,you know, when the time came, it was going to be my problem and not his...
...Q. Okay...
...The opponents of the principle—those who seek the clout of government to back their religious beliefs—base themselves on errors of history and of true religious devotion...
...The court upheld an injunction forbidding this practice...
...Did you say anything after that or...
...the students, he points out, have free choice: Some "may use the moment of silence to pray...
...The Christians among them notably forget the lesson Christ taught about this: "Beware of practicing your piety before men in order to be seen by them...
...At games against other schools, the members of the team were brought to the center of the court, where they got on their hands and knees while the coach stood over them, and with their heads bowed, recited the Lord's Prayer...
...Did anything happen or did anybody say anything to you during homeroom about that...
...The judge felt it necessary to say that even though he had said elsewhere he could not "refrain from observing that in [his] opinion a hoax conceived in political expediency has been perpetrated upon those sincere citizens of West Virginia who voted for this amendment to the West Virginia Constitution in the belief that even if it violated the United States Constitution, 'majority rule' would prevail...
...With all respect to them, I'm led to recall the observation of Justice Oliver Wendell Holmes that judges tend to be naive people...
...Did he say what the right things were to believe in...
...The drumbeating on this issue has not brought about the constitutional change repeatedly sought, but it has never abated either...
...Q. Okay...
...A. No, I didn't...
...And then what happened after the bell rang...
...They have perceived usually a more or less veiled purpose to sponsor or to promote prayer...
...In the course of his opinion, the Federal judge quoted the words of an "11-year-old child of the Jewish faith [who] testified as follows" concerning his experience in school after the amendment became state law: AT THIS POINT, to conclude on the state of the law as of now, it should be noted that the majority of the lower Federal A. Well, then the next day our principal read the whole sheet of guidelines to us...
...Second, in a number of cases the sponsors of these acts make no bones about their view that the majority has taken more than an acceptable amount of guff from minorities, and that the preponderant sentiment favoring school prayer should prevail...
...There was always plenty of time to pray or ogle...
...It is not easy to quantify, but experience teaches that many of God's pols have no longer-range view of salvation than the results of the next election...
...The thought never was, and has never become, a principle of hostility between church and state...
...others may use it to meditate, daydream, plot mischief, or ogle their favorite classmate...
...When her father spoke to the assistant superintendent of schools about her objection, that official said that "unless [the father] had grandparents buried in the Duncanville Cemetery, he had no right to tell [the assistant superintendent] how to run his schools...
...Few things have sold better on the hustings than denouncing the Supreme Court for "expelling God" from the public schools...
...Q. Okay...
...A fantasy book...
...That violated the state's duty of neutrality under the Establishment Clause of the First Amendment, which forbids any law "respecting an establishment of religion...
...What kind of book did you read...
...Q. Okay...
...In an opinion upholding the Nebraska Legislature's regular payment and use of a Presbyterian minister to open its sessions with a prayer, Chief Justice Burger wrote that this was "simply a tolerable acknowledgment of beliefs widely held among the people of this country...
...Other legislatures have chosen to be more subtle and to insist that their decreed periods of silence really have nothing to do with the Constitution's prohibition against officially promoted prayer in the public schools...
...Such expressions, made in upholding religious exercises under government sponsorship, give less than enthusiastic support to the proposition that the Religion Clauses vouchsafe minority rights, not indulgences for the majority...
...The question may have wrongly implied that only atheists would oppose this sort of law...
...He later explained the possible inconsistency when he remarked that he "anticipates continuing adverse reaction to [his] decision but considers [his] obligation to uphold the United States Constitution to be a duty which cannot in good conscience be shirked because of intimidation...
...Proposed constitutional amendments to overturn the Court's school prayer decisions have been staple contributions to the Congressional hopper...
...It is reflected, too, in a wide and persistent defiance of the Court's ruling as local communities, especially in the South, cheer schoolteachers for their classroom prayers, promote prayers on athletic fields, and continue to act as if officially directed sanctimony might be a path to salvation...
...Q. That's your religion...
...He might just as well have said it of religion...
...A strong band of pious politicians has campaigned during the last third of the 20th century for the right of students, as it is said, to engage in voluntary, silent prayer in the public schools...
...It was and remains, rather, an affirmation that both religious and political freedom are endangered if we permit the intermingling of God's and Caesar's commands as those in power from time to time construe and apply them...
...To avoid the constitutional rule against open and explicit group prayers in the schools, legislators combined religious zeal with legal genius...
...Isn't she a Christian...
...Her fellow students asked, "Aren't you a Christian...
...All rights reserved...
...A. Uh-huh...
...The answer in its way dismissed all kinds of opponents when the Assemblyman said atheists "were so few in number their views could be discounted...
...President John F. Kennedy, our first and thus far only Roman Catholic President, was a striking exception...
...A. Uh-huh...
...I don't know...
...I mean, it didn't make much sense to me because I don't know anything about his faith and that the rest of the people were going to, you know, be stuck someplace if they didn't believe in the right things...
...A. Well, in second period, which was science, our teacher left the room to go find something and one of the people who was in my homeroom turned around and asked me why I had been reading a book during the moment of silence...
...Justices of the Supreme Court and other Federal judges have reached the same conclusion...
...There were worse things wrong with that amendment than the ungainly use of "their" as a singular pronoun...
...No one can doubt the correctness of the decision...
...Q. Okay...
...There was another person...
...A. Yes...
...Q. Okay...
...SAMUEL JOHNSON spoke of patriotism as the last refuge of scoundrels...
...Sentiments like that may not be in the most elegantly stoical style of the best Federal judges...
...Ruses of this kind remind us of the essentially sleazy uses to which politicians put their professed devotion to God...
...That power is very much open to us...
...But how did it happen that in all the decades before the school prayer cases no powerhouse of daydreamers and oglers (who represent all of us, after all) demanded laws compelling periods of silence...
...Q. Did anybody else participate in the conversation...
...Well, I was afraid that the teacher either wouldn't listen or if the teacher did listen, there would be a big issue made out of it and I would be in the limelight for the wrong reasons and I was afraid that I could have a lot of bad publicity, I guess you'd say, from that...
...A. Well, I think he, from what...
...the decision herein contained is the most difficult one with which this Court has ever been faced and, indeed, is likely as exacting as any which will ever come before it...
...A. Uh-huh...
...Q. And then after that what was said...
...The concept actually antedated the Constitution by more than a century...
...A. No...
...Sustaining his position (over the dissents of Chief Justice Warren E. Burger and Justices Byron R. White and William H. Rehnquist), the Supreme Court found that the purpose of passing the law was, as an Alabama Senator put it, "to return voluntary prayer to our public schools...
...A 12-year-old team member objected to the prayer...
...Copyright ?1994 by Marvin E. Frankel...
...Q. Okay...
...I will explain below my dissent from this view...
...Then we had the moment of silence and I read a book during it...
...One noteworthy case led a Federal district judge to strike down under the Federal Constitution a West Virginia constitutional amendment, no less, by which the state's Legislature had undertaken to sidestep the Supreme Court's ruling...
...A. Uh-huh...
...Before performing that duty, however, the judge was moved to tell how strained he found the quality of justice in this case: "From a personal and moral standpoint...
...Q. Did he know that you were a member of that faith...
...That position is by no means rare...
...In 1993...
...How about second period...
...This essay was adaptedfrom Faith and Freedom: Religious Liberty in America by Marvin E. Frankel, published this January by Hill and Wang, a division of Farrar Straus Giroux...
...Q. What did he say...
...and it was his duty to strike down the West Virginia amendment...
...How did you feel about that...
...You mean in your school...
...Similarly devout sentiments were echoed by other West Virginia legislators standing in a large and courageous majority on the side of God...
...And I told him that I didn't have to pray then and I didn't want to and then he told me that I should be praying all the time and then he said something to the effect that if I prayed all the time, maybe I could go to heaven with all the Christians when Jesus came for the second time instead of, as he put it, going down with all the other Jews...
...There was outrage that God had been "expelled" from the schools...
...HOWEVER, two of the Justices in the majority said, and four broadly intimated, that a law merely calling for a period of silence would pass constitutional muster...
...On the contrary, the volume rose and the pressure for change increased in the 1994 midterm election campaign...
...IN ADDITION to the quoted eviIdence, the judge had a record which gave evidence of a Leg-islature bent on advising the Supreme Court of its errors...
...If they have done useful service at all, it is to remind us of the misery inflicted by self-righteous tyrants like these on young people and others who do not share their religious convictions (assuming in their favor that people of this sort have genuine inner "convictions," rather than merely devices for oppressing their neighbors...
...The moment-of-silence laws are, in one word, charades...
...First, they have all emerged in the wake of the Supreme Court's banning of officially sponsored prayer and Bible reading in the schools...
...In a long, prudent perspective, it can be seen that they risk freedom of religion for themselves as well as others...
...Virginia's silent prayer law reached, and expired in, the Supreme Court in 1985...
...A. After that, we did the Pledge of Allegiance...
...Despite the attention they have received, these state laws exhibit only two or three salient—and to me regrettable—characteristics...
...You referred to the guidelines...
...And were there announcements...
...A. Yep...
...And I would hope that as a result of this decision that all American parents will intensify their efforts at home, and the rest of us will support the Constitution and the responsibility of the Supreme Court in interpreting it, which is theirs, and given to them by the Constitution...
...Q. Okay...
Vol. 77 • September 1995 • No. 12
