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Appeals Court Upsets Prayer Ruling in Alabama

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The U.S. Court of Appeals for the 11th Circuit has ruled that Alabama's laws allowing school prayer are unconstitutional. The ruling reverses a January decision by a lower-court judge who said the U.S. Supreme Court "erred in its reading of history" when it struck down public-school prayer 21 years ago.

In a unanimous decision, the three-member appeals panel rebuked U.S. District Judge W. Brevard Hand for contradicting the Supreme Court on an issue that it had already clearly decided.

In two major school-prayer cases decided in 1962 and 1963, the Supreme Court ruled that government sponsorship of prayer in public schools violated the Establishment Clause of the First Amendment.

Only the Supreme Court can overturn one of its precedents, the appeals court said in its May 12 decision. "If the Supreme Court errs," the opinion said, "no other court may correct it."

In addition to striking down two state laws that allowed school prayer, the appeals court said that "voluntary" prayer in the Mobile school district--where the suit originated--must cease.

One of the state laws at issue in the case, passed in 1981, allowed teachers to announce a period of silence, not to exceed one minute, for the purpose of meditation or voluntary prayer at the beginning of each school day.

Another law allowed any "teacher or professor" in public education in the state to lead willing students in prayer. This law contained a suggested prayer written by the son of former Gov. Forrest H. (Fob) James III.

Both laws were ruled to be in violation of the Establishment Clause of the First Amendment.

The appeals court said the fact that the suggested prayers were voluntary and nondenominational did not "neutralize" the state's involvement in religion. A state, the court said, must remain neutral not only between competing religions, but also between believers and nonbelievers.

The court said public-school prayer is unconstitutional because it is inherently a religious exercise.

According to Ishmael Jaffree, the Mobile lawyer who brought the suit on behalf of three of his children who are in Mobile public schools, the appeals court also dealt specifically with the school-prayer activities being carried out by some teachers in Mobile public schools.

The state argued that some teacher-initiated prayer--like that occurring in the Mobile district--was not motivated either by law or by board policy, and that such "nonstatutory" prayer did not violate the Establishment Clause.

The appeals court rejected this argument, saying that because school boards are "creatures of the state" and are controlled by the state, the board's failure to stop the prayer in effect "ratified the teacher conduct."

The opinion also said: "If a statute authorizing the teachers' activities would be unconstitutional, then the activities, in the absence of a statute, are also unconstitutional."

In his January ruling, Judge Hand cited a range of historical evidence to argue that the Establishment Clause was intended by the authors of the Constitution only to prohibit the federal government--and not the states--from establishing religion.

Judge Hand said the Supreme Court's guiding principle in deciding cases involving prayer or religious activities in schools--that such activities breach the "wall of separation" between church and state--is historically incorrect.

The appeals court acknowledged that some historians contend that the Supreme Court has "misread" the meaning of the Establishment Clause, but said the Court has carefully considered these arguments and rejected them.

Judge Hand also said the Supreme Court had incorrectly used the 14th Amendment to extend the Bill of Rights to the states.

The appeals court said that the 14th Amendment does in fact make the First Amendment binding upon the states.

The court also reversed Judge Hand's decision to deny court costs to Mr. Jaffree.

The state has 60 days in which to file for a hearing before the Supreme Court. Both the Mobile school-board president and Gov. George C. Wallace said last week that the decision would be appealed.

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