Voluntary School Prayer Constitutional Amendment

The principal problem, of course, is that what is nondenominational to some may be religiously offensive to others. It is, in fact, difficult even to conceive of one prayer capable of satisfying the religious needs of all groups and individuals. Any such prayer would force adherents of many highly respected traditional or fundamentalist religions to absent themselves, because in their view such nondenominational prayers too greatly dilute the religious experi

ence.

The alternatives to a nondenominational approach unfortunately present even greater difficulties. A public prayer chosen to reflect the views of a majority clearly excludes and must offend minority views. Moreover, the religious majority of any one public institution is not necessarily the religious majority of any other.

We can certainly expect, therefore, that adherents of every religion will want to absent themselves from the prayers selected by some, if not many, public institutions. We can also expect that the majorities in some public institutions may choose to endorse highly controversial forms of prayer. The Association is greatly concerned that, armed with this amendment, certain groups may try to use the public schools and other public institutions for the promulgation of views which are not truly religious, even in their own scheme of things.

The risk of unexpected results is well illustrated by a recent New Jersey case involving the right to teach Transcendental Meditation in the public schools. Although proponents of TM denied its religious character, the New Jersey courts decided over their objection that TM is a religion and cannot be taught in the schools with out violating the establishment clause.

Ironically, under Senate Resolution Resolution 73 or any similar prayer amendment, Transcendental Meditation, now removed from the public schools as a religion, could return as a constitutionally permitted form of prayer. Its adherents could certainly claim a right, at least in New Jersey, to participate in the composition of any public prayer.

Under any interpretation of Senate Joint Resolution 73, the proposal will involve the courts and other branches of government in determining what constitutes religious belief and prayer.

Even if, instead of a nondenominational or majoritarian approach, we were to permit some form of participation by many religious groups on some sort of voluntary or rotational basis, the definitional problem of whose claims should be treated as religious will necessarily remain.

Surely even those who disagree with many aspects of the Supreme Court's interpretation of the establishment clause must agree that we embark on an unwise course when we permit government, at whatever level, to act as the arbiter of what is orthodox or acceptable or even nondenominational in matters of religious conscience.

Amending the Constitution to permit simple public prayer may seem a small, politically appealing step. But it cannot be so in a pluralistic society such as ours. The Association of the Bar of the City of New York urges that this subcommittee decide to leave religious matters to the realm of individual conscience and reject adoption of the proposed amendment.

Senator HATCH. Thank you, Mr. Dunn. We will go to you, Ms. Merel.

STATEMENT OF GAIL MEREL

MS. MEREL. Thank you, Senator. It is a great honor for me to be here to testify on Senate Joint Resolution 73 and related amendments relating to public prayer. I am here, as you indicated, on behalf of the Association of the Bar of the City of New York, which is an association of over 13,000 lawyers.

I understand that the report which I have submitted will be introduced into the record, and I want to point out that it is a report issued by that association.

Senator HATCH. Without objection.

Ms. MEREL. The Bar Association strongly urges rejection of the amendment proposed in Senate Joint Resolution 73, as well as any other similar proposal endorsing public prayer.

Since we have already introduced the report into the record, I would just like to take a few minutes to address some of the practical difficulties created by this amendment. Its proponents argue that it serves merely to reaffirm the strong religious heritage of this country. The Association agrees that ours is a religious nation, but we are also mindful that ours is a nation of great religious diversity.

If, in fact, we all held the very same religious beliefs, a moment of prayer might be a good thing. But we do not all share the same religious views, and our religious diversity, as we all know, has been growing, not diminishing.

Because of this country's religious diversity, the Association believes that the proposed amendment will have at least two pernicious consequences. First, implementation will divide, not unite, political communities along religious lines. And second, it will require public officials to decide what is and what is not religion, an inquiry touching on the most personal of interests.

These consequences arise from the fact that when you decide to encourage religion, you have to decide what religion to encourage. The amendment would, for example, permit schools and other public institutions to select some sort of nondenominational prayer for public recitation. But how can public institutions compose such prayers without in the process dividing themselves along religious lines? It has been suggested here in earlier testimony that this could be easily accomplished by some sort of interfaith council. The problem is: who is to sit on such a council?

In addition to the many religions that have traditionally been represented in this country, there are an increasing number of new religious sects. There are also many highly religious individuals who belong to no organized religion. It has been suggested in earlier testimony that these decisions relating to public prayer may be easily left to local school boards. But who among us, even on a local level, should have the power or the right to decide, in the case of each public institution, which of these religious groups and individuals is entitled to participate in the composition of a nondenominational prayer?