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Witnesses Disagree Over Implications of Prayer Amendment

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Washington--Witnesses offered varying opinions on the necessity for and probable effects of the Reagan Administration's proposed constitutional amendment permitting prayer in public schools during Senate subcommittee hearings ending last week.

On one hand, Secretary of Education Terrel H. Bell warned members of the Senate Subcommittee on the Constitution that "we are discriminating against those who are interested in religion" by not allowing school prayer.

On the other, William P. Thompson of the General Assembly of the United Presbyterian Church told the members that the amendment was both unnecessary and potentially harmful to religious freedom.

Anyone can now pray in school on his own "so long as that prayer is not coercive to others or disruptive of the school's function," Mr. Thompson said.

"The intent of the amendment," he continued, "is to provide officially sanctioned, public, group prayer as part of the program of the school. It would seriously erode a fundamental and precious freedom, introduce sectarian controversy into every American community, divert public schools from their proper responsibility, and reduce religious faith and practice to a travesty."

The proposed amendment, SJ Res. 73, reads: "Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any state to participate in prayer."

The amendment would apply to all public institutions, but as it relates specifically to schools, it would nullify the U.S. Supreme Court's decisions in two major school-prayer cases in 1962 and 1963, Engel v. Vitale, and School District of Abington Township v. Schempp.'

In these cases, the Court ruled that government sponsorship of prayer in public schools, even if nondenominational, violated the Establishment Clause of the First Amendment.

Since then, according to the Bar Association of New York City, every session of the Congress has considered and rejected attempts--either through legislation or proposed constitutional amendments--to reverse these decisions.

President Reagan sent the current proposal to the Congress in March. He advanced a similar measure last year that never emerged from the Senate Judiciary Committee.

At last week's hearing, the scheduled witnesses included a deputy attorney general of the United States, lawyers, law professors, religious leaders, political scientists, and a student.

A Faulty Interpretation

One major argument in the current discussion is that the Supreme Court based its school-prayer decisions on a faulty interpretation of the Establishment Clause--a position that an Alabama judge took when he upheld that state's school-prayer laws in January.

The judge in that case, W. Brevard Hand, relied heavily on a book called Separation of Church and State: Historical Fact and Current Fiction, written by Robert L. Cord, a professor of political science at Northeastern University in Boston who appeared before the subcommittee last week.

Mr. Cord said the First Amendment originally had three purposes: to prevent the establishment of a national religion; to safeguard religious freedom; and to allow the states to deal with religious establishment as they saw fit.

However, he said, the writers of the Constitution did not intend to set up the "high and impregnable" wall between church and state on which many First Amendment decisions by the Supreme Court have been based.

Mr. Cord concluded, based on research involving primary historical documents, that for "Jefferson, Madison, Washington, Adams, [and] their Congresses, ... the use of religious or sectarian institutions--including prayers--as a means to reach secular ends was not a violation of the First Amendment unless, and only unless, preferential treatment was given one church, one religion, or one religious sect, thus elevating it into a preferred legal status."

However, Mr. Cord said the amendment as currently worded is too "open ended" and "would constitutionally sanction all public-school prayers, even a religiously partisan one conducted by public-school teachers." He recommended instead an amendment that "merely provide[s] for a moment of silence or a religiously nonpartisan prayer."

Michael J. Malbin, a political scientist at the American Enterprise Institute, a public-policy research organization here, also told the subcommittee that, constitutionally, the most acceptable course would be a moment of silence for "meditation, prayer, or personal reflection."

Lower-court decisions against such an approach notwithstanding, he said, this method is "perfectly neutral among religions, and between religion and irreligion" because it "suggests prayer as one of several possibilities."

Enhance Religious Freedom

Gail Merel, a spokesman for the Bar Association of New York City, said the prayer amendment is unnecessary to enhance religious freedom and could undermine such freedom.

"We believe that implementation of a prayer amendment would divide communities along religious lines on the issue of what prayer or prayers schoolchildren and others should be told or permitted to say," Ms. Merel said.

Burke Marshall, a professor at the Yale Law School, said the amend-ment would "inescapably" put the matter of "choice of prayer or prayers" in the hands of the state.

"Who else, but members of the school board, or other officials of the state, will write the prayer?" he asked.

Frances A. Zwenig, who spoke on behalf of People for the American Way, an organization that promotes civil liberties, said the amendment would, in practice, discriminate against students who did not wish to pray.

"Should children with 'different' religious convictions leave the room or do something else at prayer time?" she said. "Few 8-year-olds will defy peer pressure, the teacher's authority, and state law in order to exercise their constitutional rights."

Richard B. Dingman, legislative director for the Moral Majority, cited several polls in which the public strongly supported prayer in schools, including a 1982 Gallup poll in which 79 percent said they were in favor of the President's proposed amendment.

To become law, the amendment would have to be passed by two-thirds of the members of the House and the Senate, as well as by three-fourths of the state legislatures.

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