What in God's name is going on?

National Review, Feb 8, 1985 by James Jackson Kilpatrick

BEFORE IT recessed for the holidays, the Supreme Court heard argument in three cases involving the constitutional command that Congress shall make no law "respecting an establishment of religion." By the end of the Court's term in July, when opinions in these cases will have come down, we will know whether the Court truly has embarked upon a dramatically new course in these profoundly troublesome waters. Something clearly is Going On. Precedents that only a few years ago seemed strong and viable have not been expressly or even impliedly repealed, but they are going through a remarkable sea change. What in God's name is afoot?

One of the three key cases has to do with prayer in the public schools; a second concerns state aid to religious schools; the third involves labor on the Sabbath. In each case the question is whether a state is promoting religion and, if so, whether the state is promoting religion to some unconstitutional extent. The three current cases tread closely on the heels of several other significant cases in which the High Court has gone farther in the name of "accommodationc than it is beginning to look more like a picket fence.

The school-prayer case comes from Mobile, Alabama, where three children of Ishmael Jaffree were attending public schools. The state of Alabama had made two legislative attempts to sneak God back into its classrooms. One of these attempts, in the form of an act mandating a specific prayer that willing students would recite in unison, was so blatantly unconstitutional that the Eleventh Circuit condemned it summarily and the Supreme Court affirmed. The other attempt, which is now before the Court, was more subtle. The Alabama legislature passed a little law that reads, in full: At the commencement of the first class of each day in all grades in all public schools, the teacher in charge of the room in which such class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in.

This is the "minute of silence" law. At least 23 states have enacted substantially identical statutes. Do they violate the First Amendment?

A different question is raised in a case from Grand Rapids. Six years ago the city embarked upon a program of supplementary educational opportunities for children in nonpublic schools, and also for adults interested in after-hours instruction. The program evidently has worked well. The city leases classrooms in 41 nonpublic schools, paying $6 per week per room for elementary schools and $10 per week for high schools. Of the 41 schools, 28 are Catholic, seven Christian, three Lutheran, and one Seventh Day Adventist. As a condition of the lease, the classrooms are "desanctified." They are stripped of all religious pictures or symbols, and they are used solely for nonsectarian instruction in such areas as remedial math, remedial English, art, music, and physical education. The after-hours offerings include journalism, criminology, foreign languages, and advanced biology. The courses are taught by 470 teachers employed by the city.

None of these conditions impressed U.S. District Judge Richard Enslen. He held the scheme in violation of the Establishment Clause. In September of 1983 a divided Sixth Circuit affirmed.

The third of the current key cases arose in Connecticut, where Donald Thornton was working as a department manager for Caldor, Inc., a chain of retail department stores in the Northeast. Connecticut has a law that says: "No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day."

In 1977 Caldor began opening some of its stores for business on Sundays. At first Thornton went along with Caldor's policy or requiring managers to work at least one out of every four Sundays, but in 1980 his Presbyterian conscience began to trouble him sorely. He told Caldor he no longer would work on his Sabbath. Caldor offered to transfer him to a Massachusetts store that did not require Sunday work; as an alternative, Thornton could remain in Connecticut but as a nonsupervisory employee. Thornton declined both propositions; he didn't want to move or to commute a long distance, and demotion would drop his wages from $6.46 an hour to $3.50 an hour.

In March 1980 Thornton quit. He allege wrongful discharge under the state law. A state board of mediation and arbitration upheld his claim, but the company appealed to the Supreme Court of Connecticut, which ruled the statute unconstitutional.

Let Us Not Pray

THE SCHOOL-PRAYER cases go back to 1962. At that time the New York State Board of Regents had given its imprimatur to a brief prayer that could be recited in the classroom by pupils who wished to do so. The prayer was both nondenominational and innocuous: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country."