Church and state separation gives both protection. School prayer controversy casts continuing shadows

THE religious right may be running out of time on the school prayer issue. Attempts to get Congress to adopt a constitutional amendment to allow state-sponsored prayer in the classroom have been repeatedly rebuffed.

And the United States Supreme court just last year held that an Alabama period-of-silence law was unconstitutional because, according to Associate Justice John Paul Stevens, it was ``entirely motivated by a purpose to advance religion'' and it had ``no secular purpose.''

The vote was 6 to 3. But given the political climate, the issue will doubtless come before the justices again -- perhaps before the end of the 1986-87 term.

A New Jersey moment-of-silence law, overturned by an appellate court, has been offered for Supreme court review (but, as of this writing, not yet accepted). It differs from the Alabama statute in that it doesn't specify that this quiet time is to be used for prayer or religious meditation.

This case -- or one similar to it -- could be the vehicle for a new judicial interpretation not only of school prayer but of the 200-year-old establishment clause of the First Amendment to the US Constitution.

This provision mandates that ``Congress shall make no law respecting an establishment of religion.''

Interestingly, the debate on the court now may be not so much between liberals and conservatives as it is among conservatives with differing philosophies.

In recent years, the pro-prayer advocates have included Justices William H. Rehnquist, Byron R. White, and Warren E. Burger. Justices William J. Brennan, Thurgood Marshall, and Mr. Stevens voted against state-sponsored prayer of any kind. That left Justices Harry Blackmun, Lewis F. Powell, and Sandra Day O'Connor to sway the balance.

But now Mr. Burger has retired; Mr. Rehnquist has been elevated to chief justice; and former appeals court judge Antonin Scalia has been added to the court as an associate justice.

How might this new lineup affect the court's stance on prayer?

The theories are bountiful. They range from ``nothing will change'' to ``everything will change.''

One view rests primarily on a nose count. It is that the Scalia-for-Burger exchange will leave the court where it was -- 6 to 3 against school prayer. But others say that given the right case, Justices O'Connor and Powell -- and perhaps others -- may well read the situation as an ``accommodation'' of religion rather than an ``establishment'' of it and allow prayer, particularly in the form of a voluntary ``moment of silence,'' which carries no specific provision that the quiet time must be used for meditation or silent communion.

In the Alabama case, Justice O'Connor made a clear distinction between an arranged quiet period and one mandated by the state for purposes of prayer. She ruled out the latter as unconstitutional (voting against the Alabama law) but allowed that she couldn't ``discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren.''

Leonard W. Levy, a Pulitzer-Prize-winning constitutional scholar and professor at the Claremont Graduate School, Calif., lauds O'Connor for her judicial reasoning in the Alabama prayer case in his new book, ``The Establishment Clause: Religion and the First Amendment.'' (New York: Macmillan, 1986. 236 pp. $14.95)

At the same time, Prof. Levy sharply criticizes Rehnquist for misreading history and misinterpreting the First Amendment.

Writing on the Rehnquist dissent in the Alabama case, Levy comments that the now chief justice ``wrote fiction and passed it off as history'' when he held that the framers of the establishment clause merely intended to prohibit the designation of any church as a ``national'' one and to prevent a ``preference'' of one religious denomination or sect over others.

Levy's thesis is that Rehnquist -- along with US At torney General Edwin Meese III and other members of the Reagan administration who advocate school prayer -- is a ``non-preferentialist.''

Such non-preferentialists believe that state-sponsored religion -- whether it be in the form of prayer or public funding of parochial education -- is acceptable under the First Amendment as long as there is no preference for one religion over another.

This view, if it prevails, warns Levy, would lead to a breaking down of the historic wall of separation between church and state.

Is this to be feared? Might the establishment clause slip away through judicial reinterpretation?

Probably not -- if the courts and lawmakers, and most of all the public, adopt a reasoned view of the role of religion in the public sector.

Extremes are not helpful. They range from emotion-clad charges by the religious right and some politicians that the courts have ``banned God from the schools'' to the unbending attitude of some separatists that any form of public religious allusion -- whether it be in the pledge of allegiance or the Star-Spangled Banner or on minted US currency -- should be banned.

The Founding Fathers were by no means irreligious. They revered their church and they loved their new state. And with a special wisdom -- which is still pertinent today -- they saw fit to protect each from the possible excesses of the other.

``To Christian fundamentalists of the Framers' time,'' writes Levy, ``the wall of separation derived from the Biblical injunction that Christ's kingdom is not of this world.''

He adds: ``The wall of separation ensures the government's freedom from religion and the individual's freedom of religion. The second probably cannot flourish without the first.''

These are thoughtful words. They speak to peaceful coexistence between religions and between church and state. Justices Rehnquist and Scalia -- as well as the others -- should take careful note. And so should the rest of us.

A Thursday column