Formula for prayer at school functions draws skepticism from high court

November 07, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Lawyers trying to get the Supreme Court to relax its strict view against prayers at public school functions ran into a thick wall of constitutional skepticism among the justices yesterday.

The Bush administration's top advocate in the court, along with a lawyer for Providence, R.I., school officials, had to battle rapid-fire, often aggressive questioning from the bench throughout a hearing on the constitutional formula to be used to judge when religion and government get too close to each other.

Among those pressing the lawyers closely was Justice Anthony M. Kennedy, who has made clear in the past that he thought the court had been keeping the gap between church and state too wide and should now allow it to be narrowed.

In the Providence case, involving prayers at a junior high school graduation ceremony, Justice Kennedy said he thought it would be "a very, very substantial burden" on students if their only option was to stay away from that ceremony -- an event important to them and their families -- if they wanted to avoid hearing a prayer.

The Bush administration has urged the court to use the Rhode Island case to write a new formula under which government agencies -- including public school systems -- would be freer than they have been for 30 years to sponsor "religious expressions," including prayers at official public events.

In answer to a direct question, however, U.S. Solicitor General Kenneth W. Starr, arguing for the administration, said that he was not asking the court to go so far as to allow teachers to pray or to lead student prayers in public school classrooms. That, he said, would still be outlawed even if the court allowed religious rituals in some other areas of "civic life."

The Rhode Island case involves a rabbi's invocation and benediction -- both making direct references to God -- at a junior high graduation in Providence two years ago. When a student and her father challenged the practice in court, a federal judge banned it at all public schools in that city.

While the Supreme Court has repeatedly blocked prayers in public school classrooms, it has never ruled directly on prayers at other school functions. Mr. Starr and the Providence school officials' lawyer, Washington attorney Charles J. Cooper, urged the court yesterday to treat those other functions differently, under a new constitutional formula that essentially would ban government-sponsored prayer only when it "coerced" someone's religious beliefs.

When Mr. Cooper argued that the Providence rabbi's prayer "pales in comparison" with the references to God in the "cry" that formally opens the court's own hearings, Justice David H. Souter said that that was markedly different from prayers at a school.

In the courtroom, he said, those who heard the references to God are "capable of exercising different judgments" about what they were hearing, while school students may not be.

Mr. Cooper went somewhat further thanMr. Starr in arguing for a new approach. He suggested that, in his view, a state legislature could actually adopt a particular religion as an official state religion, if it did so in a "purely non-coercive" way.

Justice Sandra Day O'Connor said that would contradict the court's precedents, and thus she understood the lawyer to be advocating overruling those decisions.

The other lawyer arguing yesterday, Sandra A. Blanding of Warwick, R.I., ridiculed the new approach suggested by the other side, saying that it would allow graduation ceremonies at public schools to begin with a Roman Catholic Mass and would allow someone on the podium to tell students that "this is a Christian country and non-Christians are doomed to everlasting damnation."

A ruling is expected by next summer.

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