Copyright February 1996; 2000; 2004
When Alexis deTocqueville came to America in 1831 he found widespread religious enthusiasm. He noted a distinctive American characteristic was the righteousness being proclaimed from her pulpits. He wrote that he had never encountered a people whose everyday cultural experience was so religious.1 One way Americans continue to exhibit the religious enthusiasm deTocqueville observed is in the regular cycle of initiatives to add an amendment to the U.S. Constitution which would allow prayer in public schools. Such prayer was routinely practiced in Nineteenth Century America, and regularly since then in various parts of the country until the United States Supreme Court decision in the case of Engel v. Vitale in 1962, when, according to religious enthusiasts, God was "kicked" out of the public schools.2 Public outrage at the Engel decision included billboards calling for the impeachment of Chief Justice Earl Warren, negative public statements from Billy Graham3 , Norman Vincent Peale4 , and Cardinal Spellman5 , and congressional denunciations including those of Rep. Frank Becker of New York6 and Senator Sam Ervin from North Carolina.7 Of all the Court rulings of this century none has sparked more action in Congress than Engel.8 What was this decision which has caused such religious commotion? A 22 word prayer, crafted by the New York State Board of Regents, was read aloud daily in public school classrooms.9 Student participation was voluntary. On June 25, 1962, the Court ruled the Regents' prayer unconstitutional. Justice Hugo Black wrote the decision of the court, offering a separationist view of the First Amendment's Establishment Clause as justification for the ruling:
...Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause... Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion...The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate...10
The Supreme Court, as the major institution of the third branch of American government, was designed to be most removed from the shifting sands of public sentiment. Justices were given life tenure, were to be chosen by the two organs of government not directly elected by the people11 , and were to guard the written will of the nation as recorded in the Constitution,12 all methods of popular insulation. At a time when the insulation seemed complete and impenetrable--that time when the Supreme Court ruled all of President Franklin D. Roosevelt's New Deal legislation unconstitutional--it proved itself instead to be an insulated cocoon which was able to unleash a butterfly of protection for new and experimental social welfare policy.13 The cocoon had hidden eyes and ears. The firestorm against the Court after Engel has never really relented, as school prayer hearings and amendments besieged Congress in an unrelenting fashion. Beginning in 1962 there were hearings, prayer initiatives or bills, in 1963, 1964, 1966, 1971, 1980, 1981, 1982, 1983, 1984, 1985, and now talk of hearings in 1995. The 1992 case of Lee v. Weisman, the most well known recent Establishment Clause case continued the Court's "thumbs down" on school prayer14 , now extending to thirty years. Religious conservatives were hoping that the Weisman case would be the breaking of the chrysalis, or the appearance of a wing of accommodation, but all they got was a soft-shelled cocoon called "coercion."15 The many frontal attempts at amendment to the Constitution over the issue of school prayer indicate a major and widespread national sentiment opposing the Supreme Court's Engel decision, and in favor of more outward religious exercise in school. The (No-)Establishment Clause is the very first protection of the Bill of Rights, a protection which the antifederalists fought hard to get placed within America's foundational document, and which many think is the grandest heritage of any national state in world history. What could motivate a group to attempt modification, through constitutional amendment, of so grandiose a construction? What groups have been involved in this process? Who is opposed to this Constitutional adjustment and to the governmental cradling of the religious exercise of prayer it involves? What are the stakes of this contest? While these queries will be dealt with as this analysis proceeds, an answer to the latter question by one of the two major warring parties will give a hint of the extent of the "stakes":
"Gary Bauer of the Family Research Council believes such an [school prayer] amendment would send an unmistakable signal: 'The last 32 years were an odd experiment that we have now rejected as a culture.'"16
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It must be said at the beginning of this analysis that the chess board of groups in the school prayer debates in congressional hearings has been numerous, diffuse, and complex.17 The religion that Tocqueville saw everywhere can still be seen everywhere in America. 18 Given this prefatory reminder let it humbly be said that the attempts here to place order on this complex environment are by nature bell-curve generalizations and in no sense final words. Let all appearances to the contrary as the paper progresses revert to the previous sentence! It would be fair to say that the previous three decades reaching back to Engel have been a submerged bubbling, brooding, and mobilization for the "losers" in the battle to get prayer back into the schools. The shock they experienced was the beginning wake up call that helped them see that the culture they had been used to dominating was being taken from them, indeed was probably no longer theirs.19 There were almost no interest groups other than churches which testified at the first post-Engel hearings in 1964.20 When hearings are held this year, assuming Speaker of the House Newt Gingrich's promise to have a school prayer amendment voted on before July 4 materializes,21 there promise to be many interest groups.
One reason for this would be due to the tremendous proliferation of interest groups that has taken place in America since a favorable Congressional environment22 and accompanying legislation in the early 1970s opened the way for the increase. But there was a reason specific to the school prayer debate that spawned the growth of new interest groups. Opinion poll samplings have shown that a large percentage of Americans favor some kind of school prayer amendment.23 It is a general rule in the American political system that when a large number of people feel strongly about an issue, individual Congressmen, sensitive to the national movements24 and the desires of their home constituents, will gravitate to please them. How is it, then, that this majority has not translated into legislative success?
Early proponents after Engel thought that it would.25 The first answer is structural, and not as pertinent to our inquiry. The Founding Fathers made it hard to amend the Constitution, so "success" in the situation we are looking at, school prayer, requires more than just answering an opinion poll. It requires tremendous political effort and extended solidarity, public goods in perpetual short supply in the American political system. There has been persistence on the part of prayer amendment seekers, but no "pay-off" as yet. The specific answer pertinent to this study, related to Guth's recognition of the decline during this time of centralized, especially "mainstream" denominations, and the shifting of the balance of power within Protestantism26 is that there were insufficient interest groups to aggregate the desires of the majority electorate wanting school prayer.27 Individual congressmen, trying to respond to this atomized latent group, ended up offering 144 different prayer resolutions and 150 different amendments to the eventual school prayer amendment!28 In trying to speak to everyone they were speaking to no one. The Prayer Amendment proposed by Rep. Frank Becker of Long Island, introduced in 1962, sat in Rep. Celler's committee for two years while Becker worked to get the 218 signatures for a discharge petition. When Becker attained 161 signatures, Celler announced he would hold hearings beginning April 22, 1964. Without the political threat posed by these signatures, Celler would have likely left the amendment in the cellar. He was opposed to government-run school prayer.
President Kennedy had favored the Engel decision and President Johnson did nothing to alter the administration's position.29 The mainstream denominations, alienated from their constituencies, according to some observers, were also in harmony with the separationist position of Engel. They did not favor a school prayer amendment.30 In a masterstroke, 223 constitutional law professors filed a joint statement entitled "Our Most Precious Heritage,"31 which further kept Congress from jumping on the back of a potential prayer stampede. According to the National Council of Church's Dean Kelley, Becker, going into the hearings, had the upper hand in Celler's committee, by a few votes, to get the Amendment to the House floor. But by the end of the hearings the count was reversed. His discharge petition remained fifty votes short.32 The result of this political environment was that there was almost no groups representing the side which was apparently held by a majority of citizens, and there was expert testimony33 and political momentum against the amendment.
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Jewish and Catholic groups weighed in for the amendment, as did Billy Graham. Graham could have been, perhaps, a greater power to force the issue in committee, as he was already a darling to American Presidents for inaugural prayers and moral suasion34 , but he refused to testify, contenting himself with statements at press conferences and speaking engagements. This episode will be the basis for some beginning lessons for involvement in the American political process:
Lesson Number One:
Lesson Number One recognizes the importance of interest groups in the political process. Lesson Number Two applies specifically to interest groups:
Without Graham--or someone35 --to act as a mouthpiece for the latent interest group desiring that prayer be placed back in public schools, it is certain that there would be no prayer amendment. There was no Religious Right, no Moral Majority, no Christian Coalition in 1964. But now there was a "need" for one, in the sense that there was an orphaned constituency. The mainstream denominations had developed liberal seminaries which imbibed the same liberalism that led the Court to its decision in Engel. That Court decision was in harmony with their existing thinking. These denominations did not speak for the scattered bands of fundamentalists and evangelicals who absorbed deeply the shock of Engel. The closest group to do so was, perhaps, The National Association of Evangelicals which represented over two million members at that time, but their testimony at the Celler hearings was short and muted. The NAE represented existing denominations, and not atomized individuals in large, independent churches such as it now does.36 There was no coordination nor networking between Graham, the evangelicals, Catholics and Jews.
Powerful minority leader, Senator Everett Dirksen of Illinois, was determined in 1966 to succeed where Becker had failed. He introduced a constitutional amendment on March 22, 1966 that prohibited the Constitution from inhibiting any school administrator from providing for voluntary prayer by students. Dirksen went about trying to get his votes the "old fashioned way", through his vast influence and the oral persuasion built on the promise of return favors. The bill was in the committee of Senator Birch Bayh from Indiana, who opposed the measure, but recognized the need to please the as yet unrepresented American constituency favoring school prayer. Bayh's philosophy was to outfox Dirksen by offering a sense-of-the-Senate resolution endorsing voluntary prayer--a measure he did not really agree with37 --just before taking the Dirksen Amendment from committee to the floor. This would give the Senators a prayer resolution in which they could tell the folks back home that had "voted for God" while defeating the proposed rearrangement of the First Amendment.
Floor debate on the Dirksen Amendment lasted three days and resulted in 49 "yea" votes, short of the required 67. Thirty-three senators had voted "yea" on the Bayh resolution. Of those 33, 28 voted "nay" to Dirksen. Bayh's symbolic maneuver added nothing to the Constitution with its statement that "nothing in the Constitution or the Supreme Court decisions relating to religious practices in our public schools prohibits local school officials from permitting individual students to engage in silent, voluntary prayer or meditation."38
The next lesson, then, is one for legislators, but one which interest groups do well to heed:
After a failed attempt39 in the House of Representatives to pass a constitutional prayer amendment sponsored by Rep. Chalmers Wylie of Ohio in 1971, which included an amendment changing the description of the prayer from "nondenominational"40 to "voluntary," a series of hearings was held in 1980 just before the Presidential election beginning the Republican Presidential era of Reagan and Bush. Some interesting changes took place in the hearings in 1980, just before the election, and the hearings in 1983 when President Reagan himself presented Congress with a school prayer amendment.
Several factors changed in the political environment during this time period. The Moral Majority (MM), National Conservative Political Action Committee (NCPAC), Christian Voice (CV), the Religious Roundtable (RR) and the Committee For the Survival of a Free Congress (CSFC) had all formed in the decade and a half since Engel, all claiming partial credit for the convincing election of Reagan and a Republican Senate. The Senatorial candidates who received New Right support are indicated in the list below.41 With the rise of the new right groups in the early 1980s, the threat of state-mandated "voluntary" school prayer brought several public education spokespersons42 to the testimony in 1983, none of whom had not been present in the 1980 hearings just before Reagan's election. While these groups are a "given" constituency against school prayer initiatives, it took the increased clout of the Right, coupled with a presidential administation pushing for prayer to bring them out to the hearings.
It is possible they were not allowed to testify in 1980, though the record doesn't indicate that. As a matter of fact, when they did show up to testify in 1983, one among them was miffed that not one Senator was present to hear his testimony:
For the record, I appreciate, really appreciate, your willingness to be here, but resent terribly the fact that not one Senator is present to hear my testimony or that of other witnesses currently present.43
Candidate, (State) (All Republican) NEW RIGHT GROUPS, | OUTCOME (Win or Lose)
|John East (NC) MM, NCPAC |WON|
|Frank Murkowski(AK) MM |WON|
|Earren Rudman (NH) MM |WON|
|Jeremiah Denton(AL) MM, NCPAC |WON|
|Paula Hawkins (FL) MM |WON|
|Charles Grassley (IA) CSFC |WON|
|Don Nickles (OK) MM, NCPAC, RR |WON|
|Dan Quayle (IN) MM, CV, NCPAC, RR, CSFC |WON|
|Mack Mattingly (GA) MM, NCPAC |WON|
|James Abdnor (SD) MM, CV, NCPAC, RR, CSFC |WON|
|Steven Symms (ID) MM, CV, NCPAC, RR, CSFC |WON|
|Gene McNary (MO) NCPAC |LOST|
|Paul Gann (CA) MM, NCPAC, CSFC |LOST|
|Mary Buchanan (CO) NCPAC, CSFC |LOST|
|Jake Garm (UT) MM |WON|
|Paul Laxalt (NV) MM |WON|
|Bob Dole (KS.) |WON|
The Reagan-Bush ticket won 51 percent of the popular vote, carrying every section of the country. The Republicans swept the Senate, moving from a 41-59 minority into a 53-47 majority, its first in 26 years. The Democrats lost 32 House seats to the GOP but kept control of that chamber.44 Because of the power which the Right felt as a result of these elections there was a rejoicing that led to political cockiness that put the Right out on a limb. Strategies of modern interest groups often take on the characteristics of electoral politics45 because these techniques--symbolism, use of media, massive fund-raising campaigns, compromising to attain greater political ends--work46 .
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