administrative prohibition."

74 Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).

75 See generally L. Pfeffer, Church, State and Freedom 436-46, 449-50, 456-63, 479-95 (rev. ed. 1967).

76 Id. at 438. Pfeffer points to other examples of such violence and strife. For example, according to Pfeffer, when a Catholic bishop in 1843 petitioned the Philadelphia school board to allow Catholic children to use the Catholic version of the Bible:

The immediate effects of the Bishop's petition were both dramatic and tragic. For several months the controversy simmered, and then suddenly erupted in riots. Catholic churches were attacked; two in the Philadelphia suburb of Kensington were reduced to ashes. A convent was completely destroyed. Bishop Kenrick ordered all Catholic worship suspended and every Catholic church in the city closed; but this action did not avert the more serious consequences that the Bishop hoped it would. Many houses in the Irish section were destroyed by fire, some of the residents were shot down as they ran out, and a number of non-Catholic bystanders likewise lost their lives.

Id. at 437. In 1949, in Chelsea, Massachusetts, where the population was about 45% Catholic, 45% Jewish, and 10% Protestant, a request by two non-Catholic mothers to appear before the Chelsea School Committee to present their views against the singing of Christmas carols and the presentation of Christmas pageants in the schools caused serious controversy.

The press immediately took up the issue. The Chelsea Record printed a banner headline, "Seek to Ban Singing of Carols in Public School." Boston papers carried similar headlines and slogans. Feelings ran high in Chelsea and Boston.... An indignant citizen clipped the Chelsea Record's account of the petition and forwarded it to the House Committee on Un-American Activities in Washington.

It is highly probable that the not too subtle hint of a boycott of Jewish merchants contained in the last paragraph of the editorial [published in an official organ of the Catholic archdiocese of Boston] was expressed often and much more directly in Chelsea.

The intensity of community feeling and the threats of violence caused the Wolpers to leave Chelsea and go into hiding in a neighboring community. Mrs. Roller, the cosignor of the petition, was reported to have become almost hysterical as a result of the numerous telephone calls received.

Id. at 483-85.

77 Id. at 462 (citations omitted). See also id. at 461-63.

78 N.Y. Times, Dec. 12, 1982, §1, at 39, col. 1.

79 N.Y. Times, Dec. 8, 1982, at B1, col. 1.

80 B. Moyers, Commentary on CBS Evening News with Dan Rather 12 (Aug. 16, 1982). Significantly, the kindergarten teacher of the plaintiff's son did not realize she was causing discomfort to the child: “Actually, I didn't ever know that there were people that didn't say grace before they-at least grace before they ate." The school board president saw the issue as one of majority rule: "We're a nation founded under one God, and the majority of us believe in it. If there's a few people that don't, the majority has always ruled in this country.” One caller to a local radio station stated: "And anybody that don't think there's a God, I mean, that doesn't think there's a God, I think that they are very, very sick." Another caller, when asked why she supported the law said, "Because I think it's right. I—I just think it's something that should be. And any parent that is against that should not be allowed to live in this country." Id. at 12-13.

81 Justice Department Memorandum, supra note 24, at 107.

82 The recent growth in this country in the number of unusual religious claims may render such political divisiveness over public prayer more likely than ever before. See infra text accompanying notes 90-96.

83 See supra note 81.

84 See Hearings, supra note 4, at 116 (Questions and Answers [of the White House] on the President's Proposed Voluntary School Prayer Amendment 2-3) (May 6, 1982) (hereinafter cited as "Questions and Answers"); Justice Department Memorandum, supra note 24, at 107-11.

85 Cf. Justice Department Memorandum, supra note 24, at 106, 109 (student-initiated prayer at appropriate, nondisruptive times).

86 Id. at 82, 103.

87 Questions and Answers, supra note 84, at 116: “The Lord's Prayer and the Ten Commandments are reflections of our Judaeo-Christian heritage that could not fairly be described as instruments for the imposition of narrow sectarian dogmas on school children."

88 See, e.g., Hearings, supra note 4, at 138 (testimony of R. P. Dugan of the Office of Public Affairs of the National Association of Evangelicals).

89 See, e.g., Hearings, supra note 4, at 132 (testimony of Rabbi S. Siegel of the Jewish Theological Seminary of America); id. at 152 (statement of E. F. McAteer of the Religion Roundtable). See also Questions and Answers, supra note 84, at 116-17.

90 See supra text accompanying notes 28-32 and 77.

91 Note, supra note 22, at 1069, quoting Jamison, Religions on the Christian Perimeter, in 1 Religion in American Life 162 (J. Smith & A. Jamison eds. 1961).

92 Id. (citations omitted).

93 See authorities cited supra note 21.

94 See supra text accompanying note 77.

95 See Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961).

96 See supra text accompaning note 77.

97 See authorities cited supra note 21.

98 Memorial and Remonstrance, supra note 70, ¶7.

99 Id.

100 See Engel v. Vitale, 370 U.S. 421, 431 (1962). See also Larson v. Valente, 456 U.S. 228, 253-54 (1982).

101 Justice Department Memorandum, supra note 24, at 107-08.

102 See supra notes 73-80 and accompanying text. The Supreme Court has recognized that aid to religion which benefits relatively few religious groups intensifies political fragmentation and divisiveness along religious lines. See Lemon v. Kurtzman, 403 U.S. 602, 623 (1971) (aid to religion neutral on its face but beneficiaries are 95% Catholic); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 795-96 (1973) (beneficiaries 85% Catholic). The mere use of religious exercises acceptable even to a very large majority certainly cannot eliminate, and may perhaps even exacerbate, the danger of coercion of religious minorities. Hence the danger, even in a predominantly Christian nation, of proposals to permit readings from the Christian Bible. See, e.g., H.J. Res. 16, 98th Cong., 1st Sess. (1983) (reading from or listening to Biblical Scriptures).

103 The phrase "public institutions" is undefined in the proposed amendment and could be quite broad. Proponents of S.J. Res. 73 apparently intend by this language to ensure that prayers of religious invocation will continue to be possible in courts and legislatures. See, e.g., Justice Department Memorandum, supra note 24, at 111; Questions and Answers, supra note 84, at 116; Hearings, supra note 4, at 152 (statement of E. F. McAteer of the Religious Roundtable); id. at 255 (statement of E. C. Schmults, Deputy Attorney General, U.S. Department of Justice); id. at 154 (testimony of G. L.

Jarmin of the Project Prayer Coalition). It would appear, however, that an amendment for this purpose is not necessary since this type of activity has never been proscribed by the Supreme Court. See Zorach v. Clauson, 343 U.S. 306, 312-13 (1952). In Chambers v. Marsh, 675 F.2d 228 (8th Cir.), cert. granted, 103 S. Ct. 292 (1982), the Eighth Circuit held that the Nebraska legislature's practices of engaging the same Presbyterian minister to say an opening prayer every day and of paying for printed copies of such opening prayers amounted to a forbidden establishment of a religious viewpoint. Citing its earlier decision in Bogen v. Doty, 598 F.2d 1110 (8th Cir. 1979), the Eighth Circuit indicated in dictum that the practice of having clergymen recite brief ceremonial prayers at the beginning of each legislative session might not offend the establishment clause if participation in the exercise were voluntary, clergymen from different faiths were invited to conduct the prayers, no payment was made for the services, and the prayers were not recorded or published. 675 F.2d at 234. The Supreme Court has granted certiorari in the case. 103 S. Ct. 292 (1982).

The payment of salaries and certain expenses to chaplains employed by the United States Congress has also been challenged recently by a United States taxpayer. The taxpayer's standing to maintain the action was upheld by a panel of the District of Columbia Circuit in Murray v. Buchanan, 50 U.S.L.W. 2534 (D.C. Cir. Mar. 9, 1982), but this decision has been vacated pending rehearing en banc, 674 F.2d 8 (D.C. Cir. 1982). The panel also held that the practice was not immune from judicial review as a political question.

The use of the term "public institution" could have unanticipated and far ranging effects, since one may read the language as applying to any institution that receives public funds or is subject to public regulation. The history of the phrase “public accommodation" in civil rights legislation certainly suggests the extent to which a phrase such as "public institutions” may take on an extremely broad meaning. See, e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431 (1973) (club held not to be private where only restrictions on membership to a swimming club were geographical and a stated maximum number of memberships); Nesmith v. Young Men's Christian Ass'n, 397 F.2d 96 (4th Cir. 1968) (since places of public accommodation differ markedly in their operation, a factual determination must be made on the circumstances of each case); cf. S. 88, 98th Cong., 1st Sess. (1983) (religious meditation to be permitted "in any public building or in any building which is supported in whole or in part through the expenditure of Federal funds").

The potential breadth of the term "public institution" could result in the various problematic aspects of the amendment being multiplied many times throughout a potentially vast number of “public institutions." Arguments will doubtless be made that there is a need to compose nondenominational prayers, to select majority approved prayers, or to protect nonparticipants from coercion in all sorts of circumstances and publicly funded institutions, including clubs, parks, libraries, dormitories, athletic facilities, post offices, airports, and possibly even some apartments and commercial buildings. Cf. Questions and Answers, supra note 84, at 116 (indicating intention to permit prayer in public parks, prisons, hospitals, and legislatures). Although many of such arguments will be rejected by the courts, some will be accepted. We are concerned about the potential for government mandated religious exercises intruding into so many aspects of life and consuming large amounts of already overtaxed judicial resources.

104 There is some authority for this interpretation of the amendment. See authority cited supra note 85.

105 See generally Note, supra note 22, at 1056.

106 Universal Military Training and Service Act, 50 U.S.C. App. §456(j) (1958).

107 United States v. Seeger, 380 U.S. 163, 174,184 (1965).

108 See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S.

398 (1963). See also Stevens v. Berger, 428 F. Supp. 896 (E.D.N.Y. 1977) (exemption from the requirement of obtaining Social Security number which respondent regarded as mark of the devil).

109 450 U.S. 707 (1981).

110 Id. at 715-16.

111 United States v. Kuch, 288 F. Supp. 439, 443 (D.D.C. 1968) (citation omitted). 112 Members of the Church of the New Song, or Eclatarian faith, a prisoners' movement, have, for example, sought an accommodation of their beliefs in the federal prisons on religious free exercise grounds. The Church professes a belief in "Eclat," a being superior to Jesus and other spiritual leaders. The central principle of the Eclatarian faith is anti-authoritarian, concerned primarily with the destruction of repressive rulers particularly within the prison system and more generally within government and the judiciary. The lower federal courts have split on whether these tenets constitute a religion under the First Amendment. See, e.g., Theriault v. Silber, 453 F. Supp. 254 (W.D. Tex. 1978), on remand from 547 F.2d 1279 (5th Cir. 1977), vacating & remanding 391 F. Supp. 578 (W.D. Tex. 1975), on remand from 495 F.2d 390 (5th Cir. 1974), appeal dismissed, 579 F.2d 302 (5th Cir. 1978), cert. denied, 440 U.S. 917 (1979); Hundley v. Sielaff, 407 F. Supp. 543 (D. Ill. 1975); Loney v. Scurr, 474 F. Supp. 1186 (S.D. Iowa 1979), on remand from Remmers v. Brewer, 529 F.2d 656 (8th Cir. 1976), remanding Remmers v. Brewer, 396 F. Supp. 145 (S.D. Iowa 1975); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa 1973), aff'd per curiam, 494 F.2d 1277 (8th Cir.), cert. denied, 419 U.S. 1012 (1974). A member of the International Society for Krishna Consciousness claimed in United States v. Silberman, 464 F. Supp 866, 870 (M.D. Fla. 1979), that the distribution of literature and solicitation of donations were aspects of his practice of religion. See also Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981), which considered the extent of the First Amendment right of the International Society for Krishna Consciousness to disseminate its religious materials. And members of the Native American Church argued successfully in People v. Woody, 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964), that the use in the ceremonies of their church of peyote, a hallucinogen with a long history of use in the religious ceremonies of North American Indians, was religious within the meaning of the free exercise clause. In State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975), cert. denied 424 U.S. 954 (1976), snake-handling as a rite undertaken to confirm the word of God under the tenets of the Holiness Church was carefully analyzed for its religious significance before being enjoined as a nuisance for which no method of accommodation could be found. In United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968), defendant, the primate of the Potomac of the Neo-American Church, a California not-for-profit corporation dedicated to the use of marijuana and LSD as the true sacraments, sought to use her religious beliefs as a defense to a criminal prosecution for illegal use and possession of controlled substances. The court took extensive evidence of the rituals and organization of the Neo-American Church, which paralleled and indeed seemed to parody that of established religions, before deciding that defendant's use of marijuana was not protected under the free exercise clause.

113 440 F.Supp. 1284 (D.N.J. 1977), aff'd per curiam, 592 F.2d 197 (3d Cir. 1979). 114 440 F. Supp. at 1305-12, 1323.

115 For example, the Supreme Court has ruled that disputes within heirarchical churches must be determined exclusively by ecclesiastical courts, because state and federal courts are not competent to determine which faction, under church doctrine, has been faithful to the charter of the church. See Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976); Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969); Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960). See also Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952);

39-015 0-84-20

United States v. Ballard, 322 U.S. 78 (1944); Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871). In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979), the Court refused to allow the NLRB to assume jurisdiction over teachers in parochial schools. The Court reasoned, in part, that the assertion of jurisdiction by the NLRB would inevitably require both that body and the courts to determine the merits of defenses to alleged unfair labor practices based on assertedly religious grounds. Justice Stevens has emphasized the wisdom of doctrines such as “neutrality” and “entanglement" that avoid litigation of religious doctrine. Larson v. Valente, 456 U.S. 228, 257 n.4 (1982) (concurring opinion); United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (concurring opinion).

116 United States v. Ballard, 322 U.S. 78, 86-87 (1944) (citation omitted); accord, e.g., Cantwell v. Connecticut, 310 U.S. 296 (1940).

117 Silent prayer is the focus of at least four of the proposed constitutional amendments now before the Congress. See, e.g., H. Con. Res. 53, H. Con. Res. 38, H. Con. Res. 13, and H. Con. Res. 5 cited supra note 1.

118 See Torcaso v. Watkins, 367 U.S. 488 (1961); cf. Wooley v. Maynard, 430 U.S. 705, 713-15 (1977) (state motto on license plate); Board of Educ. v. Barnette, 319 U.S. 624 (1943) (recitation of Pledge of Allegiance prior to inclusion of phrase "under God").

119 See, e.g., Mo. Const. art. I, §§6, 7, art IX, §8, interpreted to be more restrictive than the First Amendment in Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo. 1974) (en banc), cert. denied, 419 U.S. 1111 (1975); Tenn. Const. art. 1, §3. In Fox v. City of Los Angeles, 22 Cal.3d 792, 796, 587 P.2d 663, 665, 150 Cal. Rptr. 867, 869 (1978), the Supreme Court of California noted that the then current United States Supreme Court interpretation of the establishment clause in the area of public funding might not be as comprehensive as Article I, Section 4 of the California constitution forbidding any preference for any religious doctrine.

120 State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 P. 1000 (1930); State ex rel. Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918); Herold v. Parish Board of School Directors, 136 La. 1034, 68 So. 116 (1915); People ex rel. Ring v. Board of Educ., 245 Ill. 334, 92 N.E. 251 (1910); State ex rel. Freeman v. Scheve, 65 Neb. 876, 93 N.W. 169 (1903); State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890).

121 People ex rel. Ring v. Board of Educ., 245 Ill. 334, 349, 92 N.E. 251, 255-56 (1910).

122 Herold v. Parish Board of School Directors, 136 La. 1034, 1049-50, 68 So. 116, 121 (1915); State ex rel. Weiss v. District Board, 76 Wis. 177, 199-200, 44 N.W. 967, 975 (1890):

The answer of the respondent states that the relators' children are not compelled to remain in the school-room while the Bible is being read, but are at liberty to withdraw therefrom during the reading of the same. For this reason it is claimed that the relators have no good cause for complaint, even though such reading be sectarian instruction. We cannot give our sanction to this position. When, as in this case, a small minority of the pupils in the public school is excluded, for any cause, from a stated school exercise, particularly when such cause is apparent hostility to the Bible, which a majority of the pupils have been taught to revere, from that moment the excluded pupil loses caste with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult. But it is a sufficient refutation of the argument that the practice in question tends to destroy the equality of the pupils which the constitution seeks to establish and protect, and puts a portion of them to serious disadvantage in many ways with respect to the others.