Christian, then Jewish prayers spark court review R.I. suit could lead to shift on church-state separation

October 27, 1991|By Ellen Uzelac | Ellen Uzelac,Sun Staff Correspondent

PROVIDENCE, R.I. -- It all started in 1986 when Daniel Weisman, a Jew, heard the Baptist minister extol the wondrous ways of Jesus Christ at his older daughter's middle school graduation. Even school board officials politely concede now that the minister did get "carried away."

In Mr. Weisman's book, there are some things that just don't mix. School and prayer are among them.

So, when a rabbi offered prayers at his younger child's graduation from the same public school in Rhode Island three years later, Mr. Weisman sued -- triggering a constitutional confrontation between church and state that will reach the U.S. Supreme Court next month.

In the most direct attack this term on a constitutional precedent, the justices will be asked in legal arguments Nov. 6 to lower the wall separating church and state. If Rhode Island school officials -- supported by the Bush administration -- win their appeal, courts in the future could find it easier to approve a moment of silence for classroom prayer, Nativity scenes on government property and government assistance to parochial schools.

Unlikely as it may have seemed when Mr. Weisman and his daughter, Deborah, now 16, filed suit against the Providence school board in 1989, their case now is being used to try to scuttle the so-called Lemon test, the court ruling used since 1971 to bar government from aiding or encouraging religion in U.S. public life.

"Just because someone mentions God, is that tantamount to endorsing a certain religion?" asked Joseph A. Rotella, an attorney for the Providence school board.

"Every day, by state law, Rhode Island school kids are required to say the pledge of allegiance, and every day, these kids buy lunch with dollar bills that say 'In God We Trust.' So what are you going to do? Censor the pledge of allegiance? Reprint the money?

"That's the essence of the case: Where do you draw the line? We think the Lemon test should be revised," said Mr. Rotella. "When you get criticized for using the word God, it's time to revisit a lot of things."

At Deborah Weisman's graduation from Nathan Bishop Middle School in 1989, Rabbi Leslie Gutterman opened his invocation with the words, "God of the free, hope of the brave." In the benediction at the conclusion of the commencement, attended by about 600 people at the school, he made two direct references to a deity.

"I clearly gave a prayer," said Rabbi Gutterman.

Last year, in response to the Weismans' suit, the U.S. District Court for Rhode Island ruled that a benediction or invocation that invokes a deity and is delivered by clergy at an annual public school graduation ceremony runs afoul of the second prong of the Lemon test because it advances religion.

Under the three-tiered Lemon standard, which draws its name from the Supreme Court appeal, Lemon vs. Kurtzman, a law or governmental action is considered constitutional if it has secular purpose, has a primary effect that neither advances nor inhibits religion, and does not involve excessive entanglement between church and state.

In the District Court ruling on the Weisman case, later upheld by a federal appeals court, Judge Francis J. Boyle noted that school-sponsored prayer is prohibited "on every other school day, at every other school function," and reasoned that "if the students cannot be led in prayer on all of those other days, prayer on graduation day is also inappropriate."

School officials in Providence, which has 22,000 public school students, maintain that graduation prayers are strictly ceremonial and part of an American tradition that stretches back nearly two centuries. They note that Congress and even the Supreme Court open their sessions with prayer.

"A lot of people looked to it for tradition," said Vincent McWilliams, school board chairman. "We're not talking about school prayer here, but graduation invocations and benedictions, traditions for time immemorial." As a result of an injunction issued by the federal court, Providence schools now are forbidden from offering graduation prayers.

Religious groups have come down on both sides of the case. The Baptist Joint Committee, for instance, supports the Weismans, saying government neutrality in religious affairs would be threatened without the Lemon standard.

"This is clearly the most significant church-state case the court will decide this term, maybe this decade," said J. Brent Walker, associate counsel for the committee. "We believe in government neutrality, cutting religion loose to do its own thing, neither impeded or aided by government.

"The Lemon test keeps government neutral," he said. "Without it, government would be much more involved in religion and religious exercise."

On the other side, the United States Catholic Conference, in a legal brief supporting the Providence school board, argues that "the circumstances of this case demand scrupulous protection, not suppression of religious exercise."

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