Faith and Freedom, "Piety versus 'Secular Humanism': A Phony War"

Excerpt from (New York US District Judge) Marvin E. Frankel's Faith and Freedom (1994).

he decision of the Supreme Court in 1962 outlawing the bland triviality composed as a prayer by the New York Board of Regents, and then the succeeding year’s ruling against Bible reading in the public schools, led to a thunder of opposition that keeps rolling and resounding over the years. There was outrage that God had been “expelled” from the public schools. A senator declared that the Supreme Court had “made God unconstitutional.” Proposed constitutional amendments to overturn those decisions became staple contributions to the congressional hopper. A measure supporting public-school prayers became a central plank of the Republican platform, endorsed by president Reagan with the kind of folksy passion that lifted his high popularity ratings. While that position has never commanded the two-thirds vote in Congress required to launch an amendment, it appears steadfastly to enlist a large majority in American public opinion polls. It is reflected, too, in a wide and persistent defiance of the Supreme Court’s ruling as local communities, especially in the south, cheer schoolteachers for their classroom prayers, promote prayers of athletics fields, and continue to act as if officially directed sanctimony might be a path to salvation.

A strong band of pious politicians have campaigned during the last third of the twentieth century for the right of students, as it is said, to engage in voluntary, silent prayer in the public schools. A number of states in the 1980s enacted statues to implement this goal. To avoid the constitutional rule against open and explicit groups of prayer in the schools, legislators combined religious zeal with legal genius. A more or less standard law simply ordered a “moment of silence” during the school day, when every student individually could think about nothing, solve mathematical puzzles, fantasize about sex or even—perhaps—pray. In a number of instances the state law said nothing at all about prayer, providing only for a brief period of silence. These paths for God’s re-entry into the public schools have for the most part run into judicial roadblocks, though the cases have not been unanimous and the struggle is not yet over.

Virginia’s silent-prayer law reached, and expired in, the Supreme Court in 1985. The statue struck down in that case provided a period of silence in the public schools “for meditation or voluntary prayer.” Ishmael Jaffree, father of the two second-graders and one kindergartner, sued to have that enactment invalidated. Sustaining his position (over the dissents of Chief Justice Warren Burger and Justice Byron White and William Rehnquist), the Supreme Court found that the purpose of passing the law was, as an Alabama senator put it “to return voluntary prayer to our public schools.” That violated the state’s duty of neutrality with respect to religion under the Establishment Clause.

However, two of the Justices in the majority said, and four broadly intimated, that a law merely providing for a period of silence would pass constitutional muster. And that echoed a long-running debate that remains at most only partially resolved. The idea of legislatively decreed moments of silence in the public schools has appealed to the lawmakers of more than half the states. It has led to a spate of judicial opinions one way or another and a small shelf of scholarly writing. For all the devout attention they have received, these state laws exhibit only two or three salient—and to me regrettable—characteristics.

First, they all emerge in the wake of the Supreme Court’s banning of officially sponsored prayer and Bible reading in the schools. Their background leaves no question about their essential purpose, to evade or fight in the rearguard against than ban.

Second, in a number of cases the sponsors of these acts make no bones about their view that the majority has taken more than an acceptable amount of guff from the minorities, and that the preponderant sentiment favoring school prayer should have its way. A New Jersey state assemblyman sponsoring one of the bills was asked in debate about its effects on atheist. The question may have wrongly implied that only atheist would oppose this sort of law. The answer in its way dismissed all sorts of opponents when the assemblyman said that “they were so few in numbers their views could be discounted.” That position is by no means rare. In an opinion upholding the Nebraska legislature’s regular payment and use of a Presbyterian minister to open its sessions with a prayer, Chief Justice Burger wrote that this was “simple and tolerable acknowledgment of beliefs widely held among the people of this country.” Expressions like these, made in upholding religious exercises under government sponsorship, gives less than enthusiastic support to the proposition that the Religion Clause vouchsafe minority rights, not indulgences for the majority.

A third characteristic of the moment-of-silence laws is a common claim of their sponsors: that they are merely neutral provisions for a time of repose in the school day, when students can do as they please, even pray when the spirit moves them. This has august support, in the Supreme Court and among notable legal scholars. I’ll explain below my dissent from this position.

At this point, to conclude on the state of the law as of now, I report that the majority of the lower federal courts that have considered the question have held these moment-of-silence statues unconstitutional. They have perceived usually a more or less veiled purpose to sponsor or to promote prayer. One noteworthy case led a federal district judge to strike down under the federal Constitution of West Virginia constitutional amendment, no less, by which West Virginia statesmen had undertaken to sidestep the Supreme Court’s ruling. The West Virginia Amendment said:

Public schools shall provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation, or prayer. No student of the public school may be denied their right to personal or private contemplation, meditation, or prayer nor shall any student be required or encouraged to engage in any given contemplation, meditation, or prayer as part of the school curriculum.

There were worse things wrong with that amendment than the ungainly use of “their” as a singular pronoun. In the course of his opinion, the federal judge quoted the words of an “eleven-year-old child of the Jewish faith [who] testified as follows” concerning his early experience in school under the amendment:

A. Well, then the next day our principal read the whole sheet of guidelines [under the amendment for the meditation or prayer] to us. Then we had the moment of silence and I read a book during it.

Q. Okay. Did, what kind of book did you read?

A. Science Fiction.

Q. Okay. A fantasy book?

A. Uh-huh.

Q. Do you like fantasy books?

A. Yep.

Q. Okay. Did anything happen or did anybody say anything to you during home room about that?

A. No.

Q. Okay. How long did the, did the period last?

A. I’m not exactly sure. It may have been a minute, may have been thirty seconds. I don’t know.

Q. You say that they read something to you. You referred to the guidelines. Do you remember the substance of any of those, what they did?

A. Well, basically they said, they told us how long it was supposed to be and quite a few times they kept saying “contemplation, meditation, and prayer” and then towards the end they told us that if we had any religious questions, we could be referred to our parents or to, I think the phrase was “A leader of our faith,” but I am not exactly sure about the phrasing.

Q. And after that what was said?

A. After that, we did the Pledge of Allegiance.

Q. Okay. Did you participate in the Pledge of Allegiance?

A. Yes.

Q. Okay. And were there any announcements?

A. I don’t think there were very many that day.

Q. Okay. And then what happened after the bell rang?

A. Well, we all went to first period.

Q. Okay. Anything happen to you in first period?

A. No.

Q. Okay. How about second period?

A. Well, in the second period, which was science, our teacher left the room to go find something and one of the people who was in my home room turned around and asked me why I had been reading a book during the moment of silence. And I told him that I didn’t have to pray then and I didn’t want to and then he told me that I should be praying all the time and then he said something to the effect that if I prayed all the time, maybe I could go to heaven with all the Christians when Jesus came for the second time instead of, as he put it, going down with all the other Jews.

Q. Okay. Are you a member of the Jewish faith?

A. Uh-huh.

Q. That’s your religion?

A. Uh-huh.

Q. Did he know that you were a member of that faith?

A. Yes, he did.

Q. Okay. And do you know what he meant about going to heaven or going down?

A. Well, I think he, from what—

Q. What did it mean to you?

A. Well I think it meant that he was saying that certain people were going to all go to heaven. I mean, it didn’t make much sense to me because I don’t know anything about his faith and that the rest of the people were going to, you know, be stuck in someplace if they didn’t believe in the right things.

Q. Okay. Did he say what the right things were to believe in?

A. Uh-huh.

Q. What did he say?

A. Well, he said that you should believe in Christ basically.

Q. Okay. Did you say anything to him.

A. I tried to explain to him that I had my own beliefs and that I went by, I followed my beliefs and not his and, you know, when the time came, it was going to be my problem and not his.

Q. Did anybody else participate in the conversation?

A. Yes. There was another person who, this first boy told another boy that the Jews only used the Old Testament and they didn’t use the New Testament and this other boy thought that it was really stupid and then there was some period of another, of more speech, more conversation that I don’t remember, but then the second boy said something to the effect that, why was he even trying to talk to me because the Jews weren’t worth saving because they had killed Christ and that was about the end of it.

Q. Okay. Did you say anything after that or—

A. Well, I felt, you know hurt. Then I felt kind of angry because I didn’t think it was fair that he should be able to say things like that during school and get away with it. I also felt kind of uncomfortable because it’s kind of hard to try and tell somebody that, who keeps on talking that you are not listening to them.

Q. Okay. Did you, did you talk with your teacher?

A. No I didn’t

Q. Any reason why you didn’t or—

A. Well, I was afraid that the teacher either wouldn’t listen or if the teacher did listen, there would be a big issue made out of it and I would be in the limelight for the wrong reasons and I was afraid that I could have a lot of bad publicity, I guess you’d say, from that.

Q. Okay. You mean in your school?

A. Uh-huh.

The opinion went on to summarize other interesting aspects of the testimony, including these:

   A Baptist pastor testified that he objects to prayer “in a school setting where everyone else is praying as an act of religious faith and so forth, not because one could do that just because everyone else is doing it, it’s something one chooses or affirms for himself or herself.”
   The pastor said, “It tends to trivialize one’s religious devotion and makes it, well, it sometimes borders on sacrilege.”
   A 12-year-old boy of the Roman Catholic faith testified he is afraid to challenge his teacher’s directions to stand and pray each morning because he might receive demerits for “doing wrong or disobeying the teacher.” Other witnesses representing the Lutheran, Roman Catholic, Moslem, and Jewish faiths and the teaching and psychology professions also testified in opposition to the Amendment.

In addition to the quoted evidence, the judge had before him a record that gave evidence of a state legislature bent on advising the Supreme Court of its errors. One state senator explained: “To me separation of church and state concept is a myth, like evolution.” A house delegate said: “I believe it is time when we should welcome God back into the class-rooms and not by just meditation but by prayer and praise also.” Similarly devout sentiments were echoed by other West Virginia legislators standing in a large and courageous majority on the side of God.

With the kind of evidence before him, the judge said the question was a “relatively simple one” under the precedents, and that it was his duty to strike down the West Virginia amendment.

Piety versus "Secular Humanism"

by Marvin Frankel