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July 24, 1999
Column #934


     A U.S. Court of Appeals, one step down from the Supreme Court, affirmed last week the right of students to pray ''aloud in a classroom, over the public address system, or as part of a program in school related assemblies and at sporting events, or at a graduation ceremony.''

     It is an astonishing ruling, surely the most important about school prayer since school-sponsored prayer was declared unconstitutional almost four decades ago.

     The court even said, ''`Cleansing' our public schools of all religious expression... inevitably results in the `establishment of disbelief - atheism - as the State's religion. Since the Constitution requires neutrality, it cannot be the case that government may prefer disbelief over religion.''

     The decision does define some limits.  Only students can initiate the prayer not teachers or administrators.  The original 1962 Supreme Court decision declared that a school board may not constitutionally write and require students to recite a prayer.  When the state commands religious speech, it violates the First Amendment's prohibition of ''an establishment of religion.''

     However, the First Amendment also says Congress can make no law ''prohibiting the free exercise'' of religion. Therefore, the Supreme Court has also ruled that students have a right to organize Bible studies using school facilities, as does any other extracurricular group. There are at least 10,000 student-initiated Bible studies or prayer groups in public high schools.

     In between the extremes of government mandated prayer and private student prayer is a gray area   the right of students to initiate prayer at events that are mandatory for other students such as a graduation ceremony.

     Alabama's Legislature passed a law in 1993 which permitted ''non-sectarian, non-
proselytizing student-initiated voluntary prayer, invocation and/or benedictions'' during ''compulsory or non-compulsory school-rated student assemblies'' or other events.

     The Alabama law, publicly supported by former Governor Fob James, was challenged in DeKalb County by a retired vice principal named Michael Chandler, and his son, Jesse, who were backed by the ACLU and Americans United for the Separation of Church and State.

     They contended that when the State permits students to speak religiously in situations that are not purely private, the State lends its imprimatur to the speech, thereby endorsing or advancing religion in violation of the ''obligation of the public schools to provide a religiously neutral environment.'' Therefore, they said schools must forbid all public religious speech in school, including genuinely student-initiated speech.

     The court disagreed with the right of the school to censor student speech if it is religious: ''The suppression of student-initiated religious speech is neither necessary to do, nor does it achieve constitutional neutrality towards religion.''  Indeed, it demonstrates ''hostility toward religion.''

     ''The prohibition of all religious speech in our public schools implies, therefore, an unconstitutional DISAPPROVAL of religion...Permitting students to speak religiously signifies neither state approval nor disapproval of that speech. The speech is not the State's - either by attribution or by adoption,'' said the 11th Circuit Court of Appeals..

     It cited ''unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.''  There's a law which put this national motto on our currency: ''In God we Trust'' and the phrase ''one nation under God'' which is part of the Pledge of Allegiance recited by millions of school children daily. Congress opens with a prayer and the Supreme Court hears arguments in a chamber decorated with a depiction of Moses and he Ten Commandments. The President proclaims a ''National Day of Prayer'' each year.

     The decision applies only to Alabama, since it was based on that state's law. However, the court decision will surely inspire similar laws in other states to permit prayer in school, as long as it is initiated by students, and not by the school administration or teachers.

     One footnote of the case argues that the ''Constitution probably does not require'' a ''wall of separation between church and state,'' a phrase lifted from a letter by Thomas Jefferson, ''who was neither present when the First Amendment was passed nor consulted about its language.''  Chief Justice William Rhenquist is quoted as acknowledging with ''embarrassing candor" that the ''wall'' is merely a ''blurred, indistinct and variable barrier,'' which ''is not wholly accurate'' and can only be dimly perceived.''

     What a refreshing decision! Credit must be given to Jay Sekulow of the Christian ACLJ (American Center for Law and Justice) for making a better case than the ACLU.

Copyright 1999 Michael J. McManus.

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