Testimony on School Prayer Amendment

A Statement of The American Lutheran Church, 1980

Presented to Subcommittee on Courts, Civil Liberties, and the Administration of Justice (of the U.S. House Judiciary Committee), 19 August, 1980, by John R. Houck, general secretary of the Lutheran Council USA, on behalf of The American Lutheran Church, the Association of Evangelical Lutheran Churches, and the Lutheran Church in America.

My name is John R. Houck, and I serve as general secretary of the Lutheran Council in the U.S.A. I appreciate this opportunity to testify on the provisions of S450 which would prohibit the Supreme Court from reviewing state laws relating to voluntary prayer in the public schools and bar federal district courts from hearing such cases. I am testifying on behalf of three member church bodies of the Lutheran Council:

The American Lutheran Church, headquartered in Minneapolis Minnesota, composed of 4,800 congregations having approximately 2.4 million U.S. members;

The Lutheran Church in America, headquartered in New York, New York, composed of 6,100 congregations having approximately 2.9 million members in the U.S. and Canada; and

The Association of Evangelical Lutheran Churches, headquartered in St. Louis, Missouri, composed of 260 congregations having approximately 110,000 U.S. members.

The Lutheran church bodies I represent recognize the serious theological and public-policy difficulties which arise when government mandates religious exercises in public schools. Since the landmark decisions of the Supreme Court in 1962 and 1963 (Engel and Schempp cases, 370 U.S. 421 and 374 U.S. 203), these churches have consistently resisted legislative attempts to circumvent the Court's actions. This activity has not been undertaken lightly. Within these church bodies, serious consideration has been given to the school prayer issue by lay persons and members of the clergy, by individuals within our congregations and staff of regional and national church offices. The position I am presenting here has been determined in national conventions of the churches at which congregational representatives gather, and subsequent implementation has taken place according to the churches constitutions and bylaws. We do not presume to say that the decisions of these conventions reflect the personal opinion of each and every member of these Lutheran church bodies; indeed, it is doubtful that any broadbased and inclusive institution could truly make this claim. However, these statements, which serve as the foundation for our corporate action, do represent the end result of an organized and democratic process which is acknowledged as legitimate by members of these church bodies.

Although the measure before this committee is focused on "voluntary prayer," I would like to share our common concerns about the broader questions raised in the public school prayer debate. Our position on school prayer reflects our theological presuppositions about prayer, an essential part of our religious life.

1. Questionable Religious Practice
From a purely religious perspective, we believe that prayers in public schools are not essential to the cultivation of religion in our youth. Prayer and religious readings in public school classrooms, even those which may reflect our own religious tradition, are often ritualistic in character, with dubious value either as an educational or religious experience. The church bodies I represent maintain that the nurture of religious faith belongs in the home and in the church, not in the public schools.

In addition to questioning the religious benefits of prayers in public school classrooms, Lutheran churches have serious theological reservations about "nondenominational prayer" within this setting. The religious value of "sanitized prayers," as they have been described in earlier hearings before this committee, is questionable. Such prayers may even be objectionable since they may promote a religious experience which conveys none of the substance, the depth, or the cutting edge of our historic witness-or that of other faith groups.

We also object to "nondenominational prayers" which may uncritically mix nationalism and religion. As the Lutheran Church in America statement says so clearly, "the more we attempt as Christians or Americans to insist on common denominator religious exercise or instruction in public schools, the greater the risk we run of diluting our faith and contributing to a vague religiosity which defines religion with patriotism and becomes a national folk religion." Accepting as the norm in public schools "sanitized" prayer or nondenominational prayer reflecting a strong "civil religion" may seriously undermine parental direction of the religious experience of their children.

We believe that the purpose of prayer is to praise and petition God, not to serve the secular purpose of creating a moral or ethical atmosphere for public school children. Prayer is communication with God which may change the person who prays-but it is not a tool to be used to "christianize" or "moralize" public education. Thus, the intent in mandating public school prayer is vitally important, and the Lutheran churches I represent would resist any attempt by legislators or by school authorities to inject prayer into the public classroom in an effort to simply create a wholesome milieu for public school learning.

We perceive no need to "put God back into education" by mandating prayer in the classroom. As Lutherans in the U.S., we affirm the principle of "institutional separation and functional interaction" between church and government, and recognize the distinctive calling and sphere of activity of each institution. However, we believe that God is active and powerful in all human affairs and operates through human institutions which maintain peace, establish justice, protect and advance human rights, and promote the general welfare of all persons-proper concerns of the government. God's involvement in the good things of his creation, including education, is dependent on his love for us, not on government mandated prayer in public schools or other public buildings.

However, we are concerned about the quality of public school education and understand it to be inadequate when it is premised either on indifference or antagonism to the religious elements in history, in community life, or in the lives of individuals. We strongly object to policies which would make the de facto creed of public schools a secularism which would be inimicable to religious beliefs. Maintaining a wholesome neutrality among all kinds of religions-whether theistic or non-theistic in character-is a difficult but essential task for the community. While the Supreme Court has ruled state-mandated prayer unconstitutional, it has not ruled out the study of religion in public schools. In this area, Lutherans see a positive challenge to interact with public school educators in order to develop programs which acknowledge the religious and moral dimensions of life while also respecting the larger religious neutrality mandated by the Constitution.

2. Questionable Public Policy
We have stated our position that, from our religious viewpoint, prayer in public schools is of dubious value in instilling virtues or in creating a "moral atmosphere" for school children. From a public-policy perspective, we also recognize the serious difficulties which this practice creates in terms of the religious rights of individuals and the welfare of the community as a whole.

The Lutheran church bodies I represent acknowledge that the historical situation in the United States has changed since the early days of the Republic when underlying religious beliefs were assumed. The influx of new immigrants, with varying traditions and creeds, and a range of other historical circumstances has contributed to a society which is thoroughly pluralistic. The Lutheran churches view this situation as a challenge and not a threat-a challenge to articulate clearly the tenets of our faith in this pluralistic culture rather than cling to practices which may have been appropriate at an earlier stage in our nation s development but which need re-evaluation in the light of historical change. Public school prayer is one of those practices.

As Lutherans in the U.S., we cherish the guarantees of religious liberty which were written into the Constitution. We affirm the fact that the government safeguards the rights of all persons and groups in our society to the free exercise of their religious beliefs and makes no decisions regarding the validity or orthodoxy of any doctrine. These religious freedoms are guaranteed to all, to members of traditional religious groups, nonconformists and nonbelievers. We recognize that, given our pluralistic culture, religious exercise in public schools may infringe on the rights of some individuals and groups in society and invite sectarian divisiveness in the community.

The following Lutheran Church in America statement, reaffirmed in July of 1980 by representatives of the congregations gathered in convention in Seattle, discusses the public policy implications of this situation:

A due regard for all religious faiths and also for nonbelievers and nonconformists of all kinds makes it imperative that the public schools abstain from practices that run the risk of intrusion of sectarian elements and divisiveness. The public schools serve a unique and valued place in helping to build a civic unity despite the diversities of our pluralistic culture. It should be noted that when the state deeply involves itself in religious practices in the public schools, it is thereby not only appropriating a function properly served by the church and the family, but subjecting the freedom of believers and unbelievers alike to the restraint that accompanies the use of governmental power and public facilities in the promotion of religious ends.

The changes mandated by the 1962-63 Supreme Court decisions should be understood in a positive, rather than a negative light by those concerned about religious freedoms. A 1971 American Lutheran Church statement affirming these decisions expresses this sentiment and focuses on the freedoms protected by the Court rather than the restrictions posed:

We are free to pray in our own words to our own God. We are free to read the Bible in the version we prefer. We are protected against having to join in devotional exercises decreed by the governmental authorities. We are free to pray in public and to read the Bible in public places. We cannot, however, force others to join us in such expressions of our religious faith. These freedoms and these protections our Constitution, as interpreted by the Supreme Court in its school prayer and Bible reading decisions, presently assures us.

For both theological and public-policy reasons, the Lutheran churches I represent have consistently supported the changes in practice which were mandated by the Supreme Court's 1962-1963 decisions. Understanding our theological and public-policy concerns about the broader school prayer issue is essential to understanding our position on the specific provision of S450 which is being considered by this committee.

3. What Is "Voluntary Prayer"?
This proposal deals with "voluntary prayer" in public schools classrooms and public buildings. I would like to again express our understanding, and that of many other groups testifying here, that the Supreme Court has not prohibited voluntary prayer in schools-indeed, there is no way it could ban personal communication between an individual and God. Neither has it outlawed the inclusion of a moment of silence for meditation or prayer in the school day or forbidden children from reading the Bible or praying aloud in schools. What has not stood up to judicial scrutiny are prayer sessions mandated by law or organized by school officials- even if participation would be, in one manner or another, optional.

The question of just what comprises voluntary prayer is central to this issue. The Lutheran churches, like the courts, have questioned whether school-organized prayer sessions can be completely "voluntary." Children attending public schools are there under compulsion of public law. Public school facilities are used, and the teachers-symbols of authority in the classroom-may supervise the exercise. As the Lutheran Church in America statement cited above says,

These factors combine to operate with indirect coercive force on young and impressionable children to induce them to take part in these exercises, despite freedom to be excused from participation. Even persons with a genuine regard for prayer and the Bible may object to having their children engage in these exercises when they are supported by the compulsion of law.

In earlier testimony, this committee has heard representatives of religious organizations differ among themselves as to what type of "voluntary prayer" would be acceptable from their religious perspective. Some would find interdenominational prayer acceptable, while others would insist on nondenominational prayer; yet others would find either practice unsuitable. To deal with these religious differences, several have suggested that "community standards" be the means for determining actual practice in the public schools. However, the "community standard" argument ignores the reality and the depth of these religious differences, especially as they regard minority groups, and does not seriously weigh the fundamental constitutional questions involved in this practice. Religious differences, even among advocates of school prayer, will surely find expression in diverse practices which could result in separate communities experiencing a greater or lesser degree of religious freedom. Individual states making final determinations on the school prayer issue could lead to a "patchwork quilt" of interpretations as to what the First Amendment to the Constitution means in practice.

The school prayer amendment to S450 could, in effect, set aside a nationwide standard for religious freedoms guaranteed by the Constitution and interpreted by the Supreme Court. We strongly maintain that the standard for determining which laws provide for truly "voluntary prayer" in public schools and which actually violate the First Amendment should be uniform throughout the United States. Thus, we maintain that hearing cases involving voluntary prayers in public schools is not just a state issue, but is properly within the jurisdiction of the Supreme Court.

The precedent this legislation could set makes it transcend the public-policy implications of permitting prayer in public schools; it touches upon the proper relationship between Congress and the Supreme Court and also between the states and the federal government. Other witnesses who have testified before this committee have discussed in detail the serious constitutional questions this measure raises, questions involving the separation of powers and congressional attempts to limit Supreme Court jurisdiction on specific issues involving constitutional rights. Some have described the school prayer amendment as a "backdoor" way of amending the Constitution, one which would bypass accepted procedures in an attempt to sanction certain practices likely to be ruled unconstitutional if reviewed by the Supreme Court.

If it is the wish of Congress to clarify the 1963 Supreme Court ruling for local school boards or districts, the prayer amendment to S450 is an inappropriate and perhaps even unconstitutional method to employ. If implemented, this legislation could create new problems of interpretation and could lead to unsuspected results in areas vitally touching on religious liberty. Besides opening the door to divisiveness in the community, it could prove to be the forerunner of other attempts to circumvent the decisions of the Supreme Court on key issues. It would be possible for Congress to follow the precedent set by this bill and remove from the jurisdiction of the Court other practices which could more fundamentally threaten religious liberty and infringe upon constitutional rights.

In an election year, it may seem politically desirable to approve what may be popularly perceived as a "vote for morality and prayer." However, we perceive the prayer amendment to S450 as unnecessary from a religious point of view and unwise from a public policy perspective. On behalf of The American Lutheran Church, the Lutheran Church in America and the Association of Evangelical Lutheran Churches, I urge you to reject this measure.