Although the First Amendment prohibited the establishment of religion, state-mandated religious practices such as prayer and Bible reading became established in public schools across the United States. Not until the 1960s did the issue of government support of religion become the impetus for challenges brought before the Supreme Court as violations of the First Amendment, although such opposition dates back to the late nineteenth century. An early opponent was Rabbi Isaac Wise, who opposed religious teaching and Bible reading in public schools on the grounds that it violated the separation of church and state.

The issue was first brought before the Supreme Court in Engel v. Vitale, 370 U.S. 421 (1962), in which the Court decided that government may not sponsor prayer in public schools because it is a violation of the First Amendment clause stating that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Further, in School District of Abington Township v. Schempp, 374 U.S. 203 (1963), the Court ruled that the government may not sponsor Bible reading and recitation of the Lord's Prayer in public school. Throughout the 1960s the debate continued. Then, in Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court established the so-called "Lemon test," which set forth three conditions that had to be met for a challenged govern-mental action to be constitutional. First, the government, whether federal or state, may not sponsor or aid in the establishment of a state religion; second, the action must be secular in purpose and in its impact; and lastly, the action could not excessively entangle government with religion. This, in effect, made it difficult to introduce prayer into schools.

In the early 1980s a concerted effort was made to reintroduce voluntary prayer into public schools. Under the leadership of Jerry Falwell, Howard Phillips, Ed McAteer, and Paul Weyrich, and with the support of the Reagan administration, conservative religious groups such as the Moral Majority sought to overturn the legal limits set forth in Engel and Abington Township. Attempts were made to reintroduce prayer in school through legislation and by amending the Constitution. Legislation was proposed that would have limited the jurisdiction of the Supreme Court, and a constitutional prayer amendment was introduced. Each measure was defeated, and in Wallace v. Jaffree, 472 U.S. 38 (1985), the Court ruled that a state law authorizing a moment of silence in public schools was unconstitutional. In the late 1980s and early 1990s the religious right made sporadic efforts to reintroduce school prayer legislation but were unsuccessful.

Bibliography

Alley, Robert S. School Prayer: The Court, the Congress, and the First Amendment. Buffalo, N.Y.: Prometheus, 1994.

Haynes, Charles C. "Religion in the Public Schools." School Administrator 56, no. 1 (January 1999): 6–10.

McCarthy, Tom H. "Prayer and Bible Reading in the Public Schools: Perspectives, Assumptions, and Implications." Educational Foundations 14, no. 1 (winter 2000): 65–87.

1980

In the spring of 1979 amendments attached by Republican Senator Jesse Helms of North Carolina to several Senate bills effectively added an amendment to the Constitution allowing voluntary prayer activities in the nation's public schools. The controversy about his proposal, which had been of long standing, grew more heated throughout the remainder of 1979 and throughout all of 1980, especially when the Republican presidential candidate, Ronald Reagan, supported the idea. Reprinted here are three comments on the proposal. The first is a statement by Helms in the debate in the Senate on April 5, 1979. The second is drawn from a statement by Democratic Senator Edward Kennedy of Massachusetts in the course of Senate debate on a similar measure on April 9, 1979. The third is excerpted from testimony by Thomas Emerson, a representative of the American Civil Liberties Union, before a subcommittee of the House Judiciary Committee conducting hearings on the school prayer bill in August 1980.

A. Senator Helms.

This morning as we joined with the Chaplain of the Senate in prayer, as we do each day the Senate is in session, I could not avoid the irony that while we in the Senate begin our day's activities by asking God's blessing on our efforts, the Supreme Court has effectively denied this same right and privilege to millions of schoolchildren across this Nation.

One would think that if the legislators of this country are entitled to ask for divine blessing upon their work, then so are schoolchildren. However, the Court has ruled to the contrary and in so doing has overturned more than 200 years of American custom. ...

The interpretation of the first amendment used by the Supreme Court to strike down this practice of the American people has distorted the intent and language of the first amendment. The Justices of the Court held that a voluntary, nondenominational prayer constituted a violation of the "establishment of religion" clause of the first amendment. The Court's interpretation of the first amendment indicated not only what must be interpreted as an animosity toward the effect of religion in the public life of our Nation, but also a misunderstanding of its historic role.

Nearly 200 years after the drafting of the Constitution, the Supreme Court for the first time ruled that prayer and Bible-reading in public schools encouraged by the State constitutes an establishment of religion in violation of the first amendment. At the time of these decisions, 26 States permitted Bible reading in the public schools and 13 authorized the saying of the Lord's Prayer.

In each case, the Court ruled that voluntary school programs including Bible-reading or prayer violate the establishment clause of the first amendment.

In both rulings, the Court went beyond the language of the establishment clause to construct an interpretation of it which would overturn the long-standing State practices.

In Engel, Justice Black asserted: "Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. ... The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its `unhallowed perversion' by a civil magistrate."

Mr. Justice Clark argued in Schempp that the Court had previously "rejected unequivocally the contention that the Establishment Clause forbids only governmental preference of one religion over another." He maintained that the establishment clause must be considered together with the free exercise clause, and that they impose on government a "wholesome neutrality" toward religion-whatever that is. In Justice Clark's view, the first amendment prohibits Government from any action favoring one religious sect over all others, or religion in general over nonreligion.

Mr. Justice Clark, meanwhile, formulated a new standard by which to measure legislative action regarding the first amendment. "The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."

The Court maintained that even though the prayer and Bible-reading activities were voluntary, this did not prevent them from violating the establishment clause. In Engel, the Court held that: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not."

Thus, the Supreme Court reached a position which earlier the highest court of New York State had concluded "is so contrary to history as to be impossible of acceptance." Constitutional scholars also took issue with the Court's new interpretation. ...

The Court reached its holdings in Engel and Schempp by way of a myopic and narrow view of the history of the Constitution. Only by a thorough distortion of the work of the authors of the Constitution is it even remotely possible to arrive at the sweeping condemnation of America's spiritual heritage presented in the Court's opinions.

The first amendment provides that Congress shall make no law respecting an establishment, let me emphasize that word-an establishment of religion. Those assembled at the Constitutional Convention did not arbitrarily choose the phrase "an establishment of religion." There was much history behind the term. Not only did England and Scotland have an established church, but five of the States which later adopted the first amendment had establishment churches as well.

In the Engel and Schempp opinions, the Court ruled that the phrase "establishment of religion" really meant not just the creation of a national church, but any government action dealing with or touching religion. To cite Mr. Justice Clark's new test outlined in Schempp, the "primary effect" of any governmental act must not "advance religion."

Yet, it is just this view of what the first amendment should provide that the authors of the amendment specifically rejected. During the Constitutional Convention, the delegation from New Hampshire proposed that the first amendment should read: "Congress shall make no laws touching religion. ..." Needless to say, that language was rejected.

An elementary rule of statutory construction provides that when a legislative assembly rejects language which has a broad application and substitutes in lieu of it language with a specific, narrow application, that the legislative intent is to exclude the broad application. Had the proposal that Congress make no law "touching religion" been accepted, it would undoubtedly have prevented Congress from doing much more than establishing a national religion. If applied to the States, it undoubtedly would have prohibited the type of prayer at issue in the Engel and Schempp cases. However, it is equally clear that this broad language was rejected and that Congress viewed the official encouragement of voluntary prayer, even on the national level, as not to be contrary to the first amendment's establishment provision. ...

The Congress need not yield to any Justice of the Supreme Court in its respect for the words of the first amendment or for the principles or history behind them. Neither must Congress yield its responsibility under the Constitution to insure that the freedoms protected by the first amendment are not undermined by actions of other institutions. There is no more pressing duty facing the Congress than to restore the true spirit of the first amendment.

In anticipation of judicial usurpations of power, the framers of our Constitution wisely gave the Congress the authority, by a simple majority of both Houses, to check the Supreme Court by means of regulation of its appellate jurisdiction. Section 2 of article III states in clear and unequivocal language that the appellate jurisdiction of the Court is subject to "such exceptions, and under such regulations as the Congress shall make."

The limited and specific objective of my amendment is to restore to the American people the fundamental right of voluntary prayer in the public schools. I stress the word "voluntary." No individual should be forced to participate in a religious exercise that is contrary to his religious convictions, and the bill recognizes this important freedom.

At the same time, the bill seeks to promote the free exercise by allowing those who wish to recite prayers-and they are, I believe, the vast majority of our citizens-to do so, with or without the blessings of the Federal Government. ...

Public schoolchildren are a captive audience. They are compelled to attend school. Their right to the free exercise of religion should not be suspended while they are in attendance. The language of the first amendment assumes that this basic freedom should be in force at all times and in all places.

B. Senator Kennedy.

The amendment of the Senator from North Carolina would have a greater impact and assault on the Supreme Court of the United States and its jurisdiction than has taken place in this country over the 200 years of its history.

It is important that the membership of the Senate have some awareness and understanding of the extraordinary significance of this measure. Some of the most important decisions, perhaps the two most important decisions that have been made by the Supreme Court, were those that were understood by every student in law school-they learn it early-and by most college students: the Marbury against Madison decision, which permitted the Supreme Court's judicial review of acts of Congress; and the Martin against Hunter's Lessee decision, which recognized the Supreme Court's jurisdiction to rule on State laws. Those are, really, the two bedrock decisions which have established the importance of Supreme Court judicial decisionmaking.

We are asked to impede the second of those decisions by eliminating or restriciting the judicial authority and power of the Supreme Court on one particular issue-school prayer decisions. At some time in the future, I-and I am sure my colleagues-would be willing to debate the appropriateness of the previous Supreme Court decisions, or the state of the law, or what this body ought to be doing on that issue. However, the Helms amendment reaches a significance far beyond this issue of prayer. Some can make the declaration or the statement that, on its face, it is unconstitutional. I believe that to be so, but I do not think that we really have to debate this issue. It is basically, I believe, extremely bad, and poor policy. I do think the Helms amendment reaches the foundation of this Nation in one of the most important decisions that our Founding Fathers made. That is on the separation of powers.

No one really questions that we in this body have the power effectively to destroy the judiciary. We could do that by curtailing or eliminating the authorizations and appropriations for U.S. attorneys, for the Federal judges, for magistrates, for the court buildings, for all the mechanisms which permit our Federal system to function. No one denies that we have at least that power.

The question is whether, by the exercise of that power, we should reduce and impact the jurisdiction of the judiciary. We understand that, under the Constitution, there are clearly housekeeping issues which affect the merits of decisions, which permit Congress to establish appropriate jurisdictional definitions-whether certain courts are going to be able to consider antitrust matters or not-and other similar items. But this is virtually the first assault on the Supreme Court of the United States in over 100 years, trying to define its jurisdiction in such a way as to affect the merits or the outcome of a particular Supreme Court decision.

It is for that reason and because this particular amendment affects the issues of the establishment clause and the free exercise clause of the Constitution of the United States that virtually every major religious group in this country is strongly opposed to the Helms amendment. We can ask ourselves, why are they opposed to this amendment?

It is because they see that if the Congress of the United States is prepared to exclude jurisdiction of the Supreme Court in one particular area, in the area of voluntary prayer, why cannot the Congress of the United States-maybe not this year, maybe not next year, maybe not in 20 years, but, say, in 30 years or 50 years-virtually establish a religion in the United States of America and provide for the Supreme Court exclusion from ruling on the appropriateness of that enactment.

Or, on the other hand, with acceptance of the Helms amendment, what is going to prevent the Congress in some future years from violating the free exercise clause of the Constitution by tagging on a little line, and effectively saying that the Supreme Court of the United States will be prohibited from making any jurisdictional finding on the issue?

It is a fact of history, not only of this country but of democracies throughout the history of mankind, that religions have been more persecuted than protected under democracies, and the great religions have expressed strong reservations about tampering with the Constitutional provisions that deal either with the establishment clause or the free exercise clause.

I would think that others in this body would be somewhat leery of this particular procedure. It might not be long before Members of this body, at some future time, might say, "We are going to confiscate certain business properties in this country," and then, after the confiscation process add one little, final clause, and say that no Federal Court or Supreme Court will have jurisdiction over this matter, or over compensation, or due process for businesses.

I can see that, sometime in the future, the free press might be under assault or attack. Maybe we are just going to take this one, small action dealing with the free press, and then we are going to take the old Helms language and exclude the press from the jurisdiction of the Supreme Court of the United States. The Helms amendment establishes a precedent for all types of mischief.

C. Professor Emerson.

I want to make three basic points. The first is that the religious clauses of the First Amendment embody a principle that is rather unique in our system of individual rights because it provides not only that the government may not interfere or repress religious freedom but that it may not also support even benevolently religious freedom.

In other words, the concept of freedom of religion, the right to worship whatever God one pleases, is so sensitive and so delicate that the very presence of the government in the picture acts in a repressive way and, consequently, any adequate protection of the right to religious freedom must eliminate the government from the picture entirely.

Secondly, I want to point out that the provisions in the resolutions allowing prayers in the schools and other public buildings are clearly a violation of the principles of religious freedom as we have known them. The reason primarily is that the religious exercises in the schools take place under a blanket of government compulsion. The principals, the teachers and administrators of the school systems are public officials; they control the operation of the school lock, stock, and barrel.

The children are compelled to attend, thereby becoming a captive audience, and they are required to comply with the rules of the institution. If they were not, they do not have the maturity, the capacity, or the experience to act independently of the school authorities. ...

Nor is it realistic to think that the opportunity for voluntary execution eliminates the element of coercion. School children tend to be conformists and vulnerable to both official and peer pressure. The very process of obtaining an exemption operates as a detriment to them. Withdrawal from group activities makes them feel odd or out of place and hence they have no real choice.

There is unfortunately no way to introduce freedom of religion into a compulsory authoritarian, government-dominated institution for minors, such as the public school system is. ...

The third point I would want to make concerns the resolutions specifically before this committee. The resolutions purport to convey upon individuals, but in actuality, and in their operation, what they do is confer power upon the government to interfere with the religious freedom of individuals.

The reason for this is that the religious exercises which the resolutions purport to protect are religious exercises conducted in public buildings, and school buildings, and so forth. That in itself renders the amendments objectionable and they are not saved by the provision that the right is to engage in "voluntary prayer" or religious observance. ...

In conclusion, let me just say the proposed amendments are intended to improve the understanding and encourage the practices of religion. The objective may be a laudable one but the means chosen are ill-conceived and dangerous to our system of individual rights.

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