FOOTNOTES to School Prayer paper

1 John K. Simmons, Religion in America: A Historical Perspective, (Macomb, IL: Western Illinois University, 1993) 126.

2 This expression is used routinely, and believed, by many conservative Christian groups in the U.S. When covering a school board meeting in East Peoria, IL for the Peoria Journal Star, I heard a school board member say, as if it was a fact as sure as the sun's daily rising, "we've taken God out of the schools." (Larry Pahl, "Board Members Uncomfortable With Truancy Intervention Plan," Peoria Journal Star, Sept. 16, 1994.)

3 New York Times, June 26, 1962.

4 Robert S. Alley, School Prayer: The Court, the Congress, and the First Amendment, (NY: Prometheus Books, 1994) 107.

5 Ibid 109.

6 "The most tragic [decision] in the history of the United States." Ibid.

7 "I should like to ask whether we would be far wrong in saying that in this decision the Supreme Court has held that God is unconstitutional and for that reason the public school must be segregated against Him?" New York Times, July 1, 1962.

8 Alley, 107.

9 "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers, and our country." Engel v. Vitale, 370 United States 421 (1962).

10 Craig Ducat, Constitutional Interpretation, (NY: West Publishing Co., 1983) 1531-1532.

11 Appointed by the President (who was chosen initially by electors and then legislatures when there were non-majoritarian pluralities) and approved by the Senate (initially chosen by state legislatures).

12 At least this is what Alexander Hamilton said in arguing for the ratification of the new Constitution in Federalist 78.

13 Justice Robert's "switch in time which saved nine." FDR's court-packing plan threatened to change the number of justices by ousting the justices above 70 years of age.

14 In my generalizing of the Court in the thirty year period here I am not unaware that the major characterization of its decisions relating to the Establishment Clause is "checkerboard" with some Court decisions accommodating released time programs and other waffled church-state commingling and some decisions drawing a more clean separationist line. But I am focusing on the prayer decisions here, not all Establishment cases. Obviously the two are related, but the Court has never let the prayer cases drift into the patchwork of the rest of the Establishment cases.

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15 Neglecting the Lemon test, (and thus not reworking or rejecting it as many religious conservatives had hoped) the Court developed a "coercion" standard which focused on the psychologically coercive effect of clergy-led prayer at a Rhode Island high school graduation ceremony. The coercion standard was first articulated by Justice Sandra Day O'Connor in her concurring opinion in Lynch v. Donnelly (1984). Scalia belittled the coercion standard in his Weisman dissent and suggests ways to circumvent it. The Court limited its findings in Weisman to the facts, thus discouraging the expansion of the "coercion test" to other Establishment Clause cases. (See Joyce Grover, "Shall We Ask the Preacher to Pray on Graduation Day?", Washburn Law Journal, Vol 32, Spring 1993, 459; Joseph Clemente, "Establishment Clause Prohibits State-Sponsored Invocations at Public School Graduation Ceremonies," Seton Hall Law Review, Vol. 23, 1126-1127; Mark Boatman, "Lee v. Weisman: In Search of a Defensible Test for Establishment of Religion," St. Louis University Law Journal, Vol. 37, Spring 1993, 800-801, 808-812; W. Cole Durham, Jr. and Alexander Dushku, "Traditionalism, Secularism, and the Transformative Dimension of Religious Institutions," Brigham Young University Law Review, Vol. 1993, 455-460; Will K. Wright, "Back to the Future with Establishment Clause Jurisprudence: Analysis and Application of Lee v. Weisman," Tulsa Law Journal, Vol. 28, Winter 92, 302-310; Elizabeth Barker Brandt, "Lee v. Weisman: A New Age for Establishment Clause Jurisprudence," Golden Gate University Law Review, Vol. 23 Spring 1993, 550-562; Eric Fleetham, "Lee v. Weisman: Psychological Coercion Offends the Traditional Notion of Coercion Under the Establishment Clause," University of Toledo Law Review, Vol. 24, Spring 1993, 741-761; Paula Savage Cohen, "Psycho-Coercion, A New Establishment Clause Test: Lee v. Weisman and its Initial Effect," Boston University Law Review, Vol. 73 Spring 1993, 512-521.

16 Don Feder, "America Wants School Prayer," Christian American, Vol 6, No. 1, Jan. 1995, 23.

17 The first hearings held in the House of Representatives after Engel, in Rep. Emanuel Celler's House Judiciary Committee in 1964, when published by the committee as School Prayers, fill three volumes and 2.774 pages! See also the legal-page size chart included with this paper which was drafted partly in an attempt to place an overall appearance of order on the major school prayer hearings in the last thirty years, and partly to show the complexity of the religious network involved.

18 Studies show that a vast majority of Americans claim to have faith in God. One recent study found that 82% of Americans profess to believe in an afterlife that includes both heaven and hell. James Patterson, The Day Americans Told the Truth, (NY: Prentice Hall, 1991) 204.

19 It seems to me that it could be the pre-shock to an earthquake--the big one--which seems to be looming on the American horizon: the Modern American Civil War which seems necessary to bring to resolution the cultural warfare splitting American society. The compromising and swordsmanship of Clay, Calhoun, and Webster that preceded the First American Civil War was not sufficient to stop the horrors of the war which eventually brought relative closure to the radically opposed sides. While there are currently few mediating voices like the three elder statesmen of the Pre-Civil War America, there is every bit as much reason to expect some kind of metaphorically bloody battling that will bring the truce, the peace we need nationally. But with Oklahoma City, the actual shedding of blood is now a reality which can hopefully act as a goad toward that healing.

20 This is also true for the hearings in the 1980s. The exceptions would be the ACLU, some public education groups in 1983, the department of Justice under Reagan, and the American Enterprise Institute in 1983.

21 And of course one of the assumptions here is that the proposed amendment, whatever it is, will be attended with congressional hearings in the Judiciary Committee before that date.

22 Including increased access to Congress through the decentralization caused by stripping some seniority power, expanding the breadth, staffs, and powers of subcommittees, the increased ability to have influence and access through political action committees, and the breaking down of triangular power structures among bureaucracy--key congressmen--special interests which, combined, created more openings of power for more interest groups. H.R. Mahood reviews many of the reasons for this increase in Interest Group Politics in America: A New Intensity, (Englewood Cliffs, NJ: Prentice Hall, 1990) 17-20, including bureaucracy increase, increase in the size of the national government, new political tools and technology, greater American affluence, greater education of the electorate in political goods and the attendant ease of forming public-interest groups. James L. Guth, et. al., in "Onward Christian Soldiers: Religious Activist Groups in American Politics," in Allen Cigler and Burdett Loomis, eds, Interest Group Politics, (Washington, D.C.: Congressional Quarterly Press, 1995) 56, adds the decline of political parties, the rise of new, non-New Deal issues such as women's rights, minority rights, environmentalism and consumer protection, and the rapid expansion of the middle class.

23 A June 10, 1982 Gallup poll asked the question, "Do you favor or oppose the President's voluntary school prayer amendment?" Of those polled, 79 percent were in favor, 5 percent had no opinion, and only 16 percent said they opposed the amendment. A May 24, 1982 NBC/AP poll, and a May 6, 1982 CBS/New York Times poll produced similar results. (Testimony of Richard Dingman, legislative director of the Moral Majority, May 2, 1983 at Sen. Hatch's School Prayer hearings.) These studies are certainly witnessed to by Illinois Senator Everett Dirksen's comment: "I'm not going to let nine men say to 190 million people, including children, when and where they can utter prayers." Alley, 157.

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24 "We argue that politically active elites--candidates and those who recruit and finance them-provide a crucial connecting link between national-level phenomena and individual voting decisions..." Gary Jacobsen and Samuel Kernell, Strategy and Choice in Congressional Elections, (New Haven, CN: Yale University Press, 1981) 2.

25 Rep. Celler, chairman of the House judiciary committee, had extensive research done before his hearings in 1964. The research found a vast number of religious groups in America. These "figure[s were] regularly employed by amendment proponents to suggest how easily such amendments might be implemented." Alley, 127-8.

26 Guth, 56.

27 Preliminary studies by the Celler Judiciary committee indicated that, while there were more than 18,000 religious bodies in the country with fewer than 50,000 members, there were relatively small numbers of churches with more than 50,000 adherents. Alley, 127. Amendment proponents thought from these figures that passage would be easily implemented. Ibid 127-8.

28 Alley, 128,150.

29 Alley, 110.

30 See the several charts with this paper.

31 U.S. Congress, House Hearings, School Prayers, vol. 3, 2483-87.

32 Alley, 151.

33 The constitutional law professors, attorney Leo Pfeffer, church history professor Franklin Littell of Chicago Theological Seminary (one of the most cogent and thoughtful presentations at the hearings, according to Alley, 143), well known religious historian Martin Marty, dean of the University of Chicago Divinity School.

34 Beginning with President Eisenhower in 1952.

35 The fundamentalism now found in Christian Coalition or in the Moral Majority of the 1980s was mostly apolitical in 1964. Jerry Falwell had a weekly TV show but it had a limited audience. Pat Robertson was not yet on the air.

36 Alley 143. The point here is that a representative cannot talk as freely when representing organized churches that each have their own, and slightly varying positions. But a representative group for many non-aligned individual churches is in a much better position to take more rigorous, principled, leadership stances.

37 Thus mimicking the legislative masterwork of James Madison who steered Virginia legislators to vote for a measure to establish the Episcopal Church in Virginia--a popular measure already on the legislative agenda--to keep them from voting on Patrick Henry's general assessment bill--the legislation that occasioned Madison's fabled Memorial and Remonstrance, one of North 'America's greatest statements on religious liberty--which would have provided for paying ministers from all denominations out of the state treasury. Madison knew he could not deflect both pieces of legislation. As Robert Alley writes, "Politicians were not likely to cast two votes 'against God' in the same session."! (Alley, 27.) As Madison wrote his father: "...incorporating the Episcopal Church...I assented to it with reluctance at the time, and with dissatisfaction...I consider the passage of this Act however as having been so far useful as to have parried for the present the Gen. Assesst. which would otherwise have certainly been saddled upon us..." ("Letter from James Madison, Jr. to James Madison, Sr., Jan. 6, 1785," in Robert Rutland and William M.R. Rachal, eds., The Papers of James Madison, vol. 8 [Chicago: Univ of Chicago Press, 1973] 217.)

38 Congressional Record, Senate, 87th Congress, 2nd Session, Sept. 20, 1966, 23161.

39 240-163 with 288 required for passage. Alley, 179.

40 Which was criticized by all sides as being beyond the range of practical definition. The substitution of "voluntary," however, seemed to create the same problems. This has been a traditional hurdle to prayer amendments.

41 Compiled by the American Jewish Committee: Erling Jorstad, The Politics of Moralism: The New Christian Right in American Life, (Minneapolis, MN: Augsburg Publishing House, 1981) 101.

42 T.H. Bell, Secretary of Education; Ira J. Singer, American Association of School Administrators; Joanne Goldsmith, President, National Association of State Boards of Education.

43 This was Ira J. Singer, superintendent of schools from which the Engel v. Vitale decision arose in 1962. He was representing the American Association of School Administrators. The others he was speaking of included Joanne Goldsmith, president of the National Association of State Boards of Education.

44 Ibid 100.

45 Professor Aimee Shouse, Western Illinois University, Political Science 455G-Interest Groups, May 1, 1995, in a class discussion. Also Cigler and Loomis, "Contemporary Interest Group Politics: More Than 'More of the Same,'" 394-5; 404-405.

46 The Religious Right extensively used media. When Reagan began to overwhelm challengers to his candidacy--Dole, Connelly, Bush, Baker--the Right came more openly into the spotlight. Its discipline in distributing voter guides and "moral report cards" was then channeled into targeting those with the worst report cards. The electronic preachers kept the heat on. See Jorstad Chapter 10: "The Politics of Moralism."

47 Jorstad, 100.

48 Ibid.

49 See, for instance, the opinion piece of Arthur J. Kropp, PAW President, in Congressional Digest, Jan. 95, 25-27.

50 For instance: "For those concerned about religious liberty, there's good reason to doubt Gingrich when he insists that his constitutional amendment is not designed to be coercive." Ibid, 25.

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51 A strategy empirically demonstrated by Gary Jacobsen in The Politics of Congressional Elections, (Boston, MA: Little, Brown and Co., 1983), chapter 5, an analysis of congressional voters, where he finds that those who emphasized issues and ideology received more negative comments from voters. This is why incumbents should appeal to their personal virtues and service records. And this is one reason for the heavy backlash to the Right.

52 George C. Higgins, "The Pro-Life Movement and the 'New Right'," America, Sept. 30, 1980, 107.

53 This is what the Christian Coalition is doing at present as it expands a power base in the Republican party, dominating in 18 state Republican parties and having a strong voice in 13 others. (Kenneth Jost, "Religion and Politics: What Impact will the Religious Right have on Politics?" CQ Researcher, Oct 14, 1994, 38:891.) This is also what many consumer groups, who face a free rider problem, are doing. (Cigler and Loomis, Interest Group Politics, chapter 12.)

54 It is obviously not so true in other areas. Many mainline churches have suffered severe loss of members and thus funds in recent years (this is one of the great trends of our time, Cigler, 57.) have dried up, which must be causing financial rethinking and compromise; Catholic positions seem always to be jockeying toward vouchers, to ease their educational costs and bring financial relief to their members; smaller churches need a certain monthly income like any small business, and this pressure can lead to compromise, etc.

55 (Regenery, 1994). A selection from the book entitled "The Religious Roots of Freedom" appeared in the Jan. 23, 1995 issue of National Review. The article also appeared in the April, 1995 issue of Imprimis (Vol 24 No. 4) the conservative journal of Hillsdale College from which the picture here was scanned.

56 "The Religious Roots of Freedom", Imprimis, Vol. 24 No. 4 April 1995, 1.

57 See also my "Church and State in America: Placing the Religious Right in Historical Context," written May 1, 1995 for Political Science 583, Western Illinois University, accepted for possible publication, after revisions, from Clifford Goldstein, editor, Liberty, A Magazine of Religious Liberty, 12501 Old Columbia Pike, Silver Spring, MD 21741.

58 I have written elsewhere on this question, from a "freedom-first" viewpoint: in a paper delivered at the 25th anniversary session of the West Virginia Political Science Association at West Virginia University in 1991, "Is the First Amendment a Luxury We Can No Longer Afford?"; in two papers purchased for national publication in Liberty Magazine (not yet published), "The Founding Fathers Prophets" and "Church and State in America: Placing the Religious Right in Historical Context"; and to a lesser extent one of my "two-paper option" papers, "An Assessment of the Religious Right: Magnitude, Strategy, Views."

59 "...the silent prayer amendment. First of all, as far as Christian Voice is concerned, we are not hostiley opposed to it, but at best, our position is lukewarm. However, I should add that as the director of the Project Prayer Coalition, which has over 126 national organizations and leaders as its members, I have polled most of the key organizations fighting for school prayer, and the overwhelming majority of opinion ranges from lukewarm support to outright hostility to the silent prayer amendment." Testimony of Gary Jarmin, head of Christian Voice. Voluntary School Prayer Constitutional Amendment, 1983 hearing, 425.

60 New groups on the right focusing specifically on religious liberty include Pat Robertson's American Center for Law and Justice (its ACLJ meant to show its challenge to the ACLU), Dr. James Dobson's initiative in helping start the religious liberty Alliance Defense Fund, and John Whitehead's Rutherford Institute. These groups are well funded, have radio programs, and regular magazines.

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61 In the past 12 months the CC has (according to 5-1-95 interview of spokesmen in Chesapeake, VA headquarters: 804-242-2630)) sponsored over 100 training schools to train, equip and mobilize Christian voters. established 425 new chapters in all 50 states, bringing the number of active chapters to 922. distributed 34,000,000 voter guides and 17,000,000 congressional score cards made more than 3,000,000 "get out the Christian vote" telephone calls.

62 Just as Moral Majority claimed credit for the large Republican victory in 1980, the current religious right is conscious of its part in the 1994 midterm Republican success. (See note 66). "It's payback time for the religious right and their agenda in Congress and at the state level," PAW President Arthur J. Kropp said. He predicted that religious conservatives' demands will include prayer in schools and conservative judicial appointments. (Larry Witham, "Christian Voter Turnout Rises," The Washington Times, Nov. 10?, 1994.)

63 Consider, for example, Gary Bauer's words on the Liberty-Religion chart on the next page: "Bible studies on Capitol Hill--ever-present through the years--are booming now. Before the current session of Congress was 100 days old, at least 4 members of Congress asked me to pray with them over public policy decisions they were facing...[104th Congress] For now it's enough today that its accomplishments include the restoration of our heritage of easy commerce between private creed and public service." Citizen, May 15, 1995, 9:5, p. 16.

64 "GOP Storm May Blow in on Capitol Hill for the Second 100 Days," Parade Magazine, May 7, 1995, 24.

65 Justice Scalia.

66 Evangelical voters accounted for 18 percent of the electorate in 1988, 24 percent in 1992, and 33 percent in 1994. Larry Witham, "Christian Voter Turnout Rises", The Washington Times, Nov. 10?, 1994.

67 Cigler and Loomis, (398), using an article entitled "Using Public Rage for Private Ends," from the March 17, 1993 Kansas City Star, have questioned the value traditionally placed on grass-roots efforts, because the "rising tide of citizen voices is so fraught with manipulation that the decision-making process is in danger of being twisted, especially if most of the expressions on an issue conflict with true public opinion." It is odd that a quote from a daily newspaper would make such a large dent in an academic piece attempting to contextualize a whole textbook of readings on interest groups. Suffice it to say that what truth there may be in this observation is not as true in the school-prayer groups. Remember, they have had a pent-up rage for three decades after Engel--this is not a group that has been manipulated by "K Street."

68 "Precinct by precinct, religious-right activists were the single largest organized group doing the tedious chores of voter identification, candidate survey distribution and get-out-the-vote activities," said PAW President Kropp. (Witham)

69 Stan Hastey, "BJC versus SBC," Liberty, Nov-Dec 1994, 23.

70 Ibid, 22

71 This was done in 1992, Ibid, 23.

72 Ibid.

73 Alley, 193.

74 The information comes from John Green of the Bliss Institute on Applied Politics at the University of Akron in Ohio. (Witham) Ralph Reed of the Christian Coalition said his group's polling analysis jibed with these figures. (Ibid) The turnout was generated by the growth of local activist "family councils", a rise in radio talk programs and voter-guide blitzes. While the voter guides have been criticized as another sound-bite approach to complex issues, they do act as a "perceptual screen," like political parties do, or at least used to do. "The Christian Right is no more guilty of responding to voter inattention that anybody else," Green said. He said TV ads and mass mailings used by every candidate take the same approach. (Ibid)

75 The Battle of the Bulge, or Battle of the Ardennes, fought from Dec. 16, 1944, to Jan. 31, 1945, constituted Germany's last major attempt to turn back the Allied invasion of Europe in WORLD WAR II. German forces under generals Gerd von Rundstedt and Hasso von Manteuffel drove a wedge (the Bulge) into Allied lines through the Ardennes on the Franco-Belgian frontier. They were halted chiefly by the U.S. 1st and 3d armies, the latter under Gen. George PATTON, and forced to retreat.

76 And even if they do not unravel, it is possible for the Congress to "outvote" the Court, as happened with the Religious Freedom Restoration Act (RFRA), which passed Congress in 1993. The Act was a reaction to the Supreme Court's limitation of "free exercise" in the Smith case in 1991. There was a left-to-right uproar from religious and civil liberties groups. All agreed the Smith decision expsnded state power at the expense of individual liberty. The Court denied the request of a massive coalition of groups to reconsider its decision. These forces then went to work for a legislative override, which was provided with RFRA, which gives aggrieved persons who believe their religious rights were violated the right to bring a civil action in the courts.

77 The Supreme Court in a recent decision found a federal law prohibiting guns on school grounds unconstitutinal because the law overstepped constitutional limits (no enumeration of power for national government in education); the state gun and school law is controlling.

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