In Prayer Case, the Supreme Court Kept History in Mind

THIRTY years ago the Supreme Court said that, under the Establishment Clause of the First Amendment, it is not the proper business of government either to compose prayers or to sponsor prayers for American children to recite.

That principle was reaffirmed and extended by the court June 24 when it ruled, in Lee v. Weisman, that a rabbi's invocation and benediction at a public junior-high school graduation ceremony also violated the First Amendment. "The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school," said Justice Anthony Kennedy, writing for the majority of five.

Two Jewish parents in Providence, R.I., believed that prayers do not belong in public schools, not even at graduation ceremonies, and the fact that this time the clergyman happened to be a rabbi made no difference to them. The case was argued before the Supreme Court last November. To the obvious discomfiture of several justices, the attorney for the school board maintained not only that graduation prayer was permissible, but also that the Constitution would even permit a state to design an official reli gion, if it wished, provided no one was forced to practice the established faith. For example, if the state of Utah were to decide to establish the Mormon Church as its official state religion, he saw no constitutional problem with that.

In fact, in the early days of America, quite a number of states did have established churches. Seven of the original 13 states actually barred Roman Catholics from holding public office. Ten of them barred Jews.

But all that was before the United States Constitution - and the Bill of Rights, including the First Amendment - came into being. While the Constitution originally did not bind the states in matters of religion, it did breathe a spirit of religious toleration into the body politic. Article VI, for example, forbade any religious test for national public office.

Our Founding Fathers were aware of the dire consequences to those of minority faiths in European countries with established churches. They knew that America had been settled in large measure by people who were fleeing religious oppression in European countries - Puritans, Quakers, Mennonites, Catholics, Baptists, Lutherans, Huguenots, Jews, and many others. They didn't want that to happen here. Yet, in the early days, it had begun to happen, for example, in the Puritan theocracy in Massachusetts Bay Colo ny and under the established Anglican Church in Virginia, where religious dissenters were severely punished.

THE founders were convinced that all faiths would flourish best if the state kept its hands off. So they drafted a Constitution in which religion and government would be forever separate. In the entire body of the US Constitution there is no mention whatever of Jesus, Moses, or even of God.

This doesn't mean that the founders were anti-religious. But they intended to create a secular republic, not a sectarian one. That's why school-sponsored prayers, whether by pupils or by clergy, do not belong in schools for which all citizens pay taxes.

But most Americans still do not agree. Public opinion polls consistently show clear majorities in favor of restoring organized, school-sponsored prayer on a "voluntary" basis in public schools. (If you're nine years old, however, and everybody around you is mumbling words, "voluntary" is a charade.) In a democracy, shouldn't the majority rule? Normally, it should, but not when it comes to religion. The First Amendment is expressly designed to protect minorities.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Congress, of course, at any given time represents the majority. But the founders deliberately placed certain crucial freedoms, like religion, beyond the reach of majorities. With good historical reason, they feared the possible tyranny of a majority.

The history of our country concerning church and state relations is vitally important, yet regrettably too few Americans are familiar with it.

Why do some people continue to have a virtual obsession with school-sponsored, organized prayer during the school day? Few adults, after all, expect to be able to engage in organized prayer at their places of work during the workday. Parents for whom it is important that their own children pray while in public school are free to instruct them accordingly. What many of the school-prayer zealots really seek is induced by other people's children, whether or not this is desired by other parents.

There is nothing at all unconstitutional in the systematic teaching of common core values in public schools, values that are broadly shared by people of all faiths, or none - honesty, decency, fairness, discipline, patriotism, civility, courtesy, respect for the rights and feelings and freedoms of others. Such teaching would be far more valuable to most pupils than parroting prayers - or listening to prayers by clergy, of whatever faith, at graduation ceremonies.