In Prayer Case, the Supreme Court Kept History in Mind

By Samuel Rabinove. Samuel Rabinove is legal director of the American Jewish Committee . | The Christian Science Monitor, July 6, 1992 | Go to article overview

In Prayer Case, the Supreme Court Kept History in Mind


Samuel Rabinove. Samuel Rabinove is legal director of the American Jewish Committee ., The Christian Science Monitor


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 religion, 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 Colony and under the established Anglican Church in Virginia, where religious dissenters were severely punished. …

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