School Prayer Gets a New Day in Court

ONE of the most controversial of Supreme Court decisions in the modern era is Engel v. Vitale, the path-setting 1962 ruling on school prayer. The court held in Engel that the "establishment clause" of the First Amendment, made applicable to the states by the Fourteenth Amendment, prohibited organized prayer or other religious observance in public schools.

Now the court returns to this issue in Lee v. Weisman, which poses the issue of whether the First Amendment prohibits the recitation of a prayer at public-school graduation exercises. Oral argument was heard last November, and the ruling is expected soon. Some observers believe the Supreme Court will modify Engel and grant greater scope for non-compulsory religious expression in schools and other public facilities.

For Americans interested in church/ state issues, the 30-year-old Engel decision is well worth rereading. The particular religious observance which the court then reviewed was a short, nondenominational prayer that the New York Board of Regents had caused to be written for use by school districts that wished to open the school day with a prayer.

Delivering the opinion of the high court, Justice Hugo Black was sweeping in his insistence that the establishment clause - "Congress shall make no law respecting an establishment of religion"- left no room for any state prayer program, non-denominational or not.

Moreover, Justice Black argued, the Establishment Clause "does not depend upon any showing of direct governmental compulsion," and is violated by government action on behalf of religious belief whether the action operates "directly to coerce nonobserving individuals or not."

Potter Stewart was the one dissenting justice. He charged his brethren with misapplying a "great constitutional principle." Justice Stewart wrote: "I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

Justice William O. Douglas, concurring with the majority, devoted over half of his opinion to explaining what the case did not involve. It did not, he said, involve any element of compulsion or coercion. "Students can stand mute or even leave the classroom, if they desire."

Moreover, Douglas went on, "what New York does on the opening of its public schools is what we do when we open court. Our Crier has from the beginning announced the convening of the Court and the added 'God save the United States and this Honorable Court.... What New York does on the opening of its public schools is what each House of Congress does at the opening of each day's business."

What's more, Douglas wrote, "I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads."

Then why was it necessary that the New York school prayer be struck down? Douglas answered that "once government finances a religious exercise it inserts a divisive influence into our communities.... The philosophy is that if government interferes in matters spiritual it will be a divisive force." This is a worthy policy perspective. It's hard, though, to see its constitutional base.

A large majority of Americans haven't been able to see one. The Engel decision has been consistently opposed over the last three decades. Close to four-fifths of those interviewed in a Gallup Poll in July 1962, just a month after the court ruled against school prayer, said they approved of "religious observances in public schools." Last October a virtually identical proportion, interviewed by Yankelovich Clancy Shulman, said they favored "allowing school children to say prayers in public schools."

A majority of Americans strongly endorse "a high wall" of separation between church and state. But they don't see voluntary prayer in the schools as violative of that principle. Rather, what is at issue in their view is religious freedom. The First Amendment not only bars government from the "establishment" of religion, but also from "prohibiting the free exercise thereof."

Lee v. Weisman will tell us whether today's Supreme Court is prepared to give broader recognition to the "free exercise" requirement.