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Will Lawmakers Trample Victory Won in Past School Prayer Battles?

As Congress prepares to consider a constitutional amendment that would allow prayer in the schools, Debbie Weisman is afraid that the battle she fought all the way to the Supreme Court might have to be waged all over again.

“It really bothers me,” Weisman said of the campaign to introduce a “Religious Equality Amendment” into Congress.

It’s ridiculous” that prayer in school is still an issue, said the 20-year-old Providence, R.I., resident whose opposition to prayer at graduation began when she was in junior high school.

Debbie and her family filed suit against her public middle school in 1989, prior to her graduation ceremony, at which a rabbi was slated to deliver the invocation.

The family said such a move would violate the Establishment Clause, which provides for the separation of church and state.

The case, Lee vs. Weisman, made its way to the Supreme Court, which in June 1992 ruled in favor of the Weismans, agreeing that the invocation — which had taken place after all — breached the constitutional separation of church and state.

Whereas the Weismans took their case to the courts, once the traditional battleground over school prayer issues, organizations that support school prayer, such as the Christian Coalition, are now turning to Capitol Hill.

School prayer advocates lost their battle in the judiciary branch, so now “they’re taking a different route — legislation,” lamented Weisman’s father, Daniel.

Although exact language for the legislation has not yet been drafted, it most likely would permit, among other thing, exactly what the Weismans fought to prevent: prayer at public school graduations.

Both Debbie and Daniel Weisman said they opposed the idea, which was recently unveiled in the Christian Coalition’s “Contract with the American Family.”

The contract, which has been widely embraced by Republican lawmakers, urges legislation that would allow “voluntary, student and citizen-initiated free speech in non-compulsory settings such as courthouses, high school graduations and sports events.”

“How can it be voluntary at a sanctioned event?” Daniel Weisman said.

He called the amendment a “scheme” and said the coalition was “merely looking for imaginative mechanisms to reintroduce publicly sponsored prayer.”

Keeping religion out of public schools altogether is “the only right thing to do,” Debbie Weisman added.

Although the court route worked for the Weismans and has traditionally been seen as refuges for support of separation of church and state, not all court decisions have been clear victories for separation proponents.

In fact, some legal scholars say the courts are moving toward chipping away at the wall between church and state.

Just six months after the Weisman case, the 5th Circuit Court Of Appeals in New Orleans ruled in a Taxas case, Jones vc. Clear Creek Independent School District, that students could deliver non-sectarian, nonproselytizing invocations at graduation ceremonies, according to a summary of church-state cases provided by the American Jewish Committee.

And in March of this year, a district court judge in Texas declared unconstitutional the Religious Freedom Restoration Act, legislation passed in 1993 that requires the government to justify interfering with religious practices.

Underscoring concern about the courts is a recent “Report Card on Religious Freedom,” which concluded that the courts are not defending the wall between church and state as vigorously as they should be.

“With so much attention being directed toward Congress, our survey indicates that in another key area of concern, the courts are quietly eroding our fundamental right to religious liberty,” said David Kahn, the founder of the Religious Liberty Resources Center of the American Jewish Congress, which released the report. Khan is also AJCongress’ national president.

In the report card, 17 religious liberty experts gave the Supreme Court and federal judiciary low marks when it came to some aspects of defending religious liberties.

The report said the courts are not adequately protecting people’s rights to freedom from indirect government restrictions or burdens on religious practices. Nor is there sufficient freedom from government financial entanglements with religious institutions, the report said.

The courts gave a “C” grade in the restrictions category, and a “C+” in the financial category. A “C” grade indicates that those areas are still threatened, the report said.

On freedom from “government inculcation of religion in public schools,” the courts rated a “B”- — a “well protected” grade.

None of the categories received “A”, or “extremely well protected,” ratings.

Both protection from government promotion of religion — including the display of religious symbols at government sites — and freedom from explicit government discrimination because of religious beliefs fell in the range that is well protected.

The Chicago-based center issues the ratings annually. The recent report examined the courts’ 1993-94 sessions.

Although most in the Jewish community oppose the efforts by the Christian Coalition to introduce a constitutional amendment, not all legal experts agree with the Kahn Center’s conclusions.

Marc Stern, AJCongress’ co-legal director, said he disagreed with the scholars’ assessment of how the courts have ruled on issues related to prayer in public schools.

“There’s no evidence yet that the courts in the public school context are doing a less-than-adequate job,” Stern said. He noted that he would give the courts a higher grade in that respect.

In general terms, Stern said, it is “implausible” for people to believe that the courts have abandoned separation of church and state.

“It’s just not true,” he said. “There’s no cause now for panicking about the courts.”

The American Jewish Committee’s legal counsel, Sam Rabinove, agreed that the courts have “upheld the separationist principle.” But, he said, some Supreme Court justices such as Antonin Scalia, would “like to abandon it.”

Activists should be more concerned with thwarting passage of the Religious Liberty Amendment, which could further weaken the wall between church and state, Stern said.

Such an amendment would “substantially alter” the current concept of the dividing line between church and state, AJCongress’s Stern said.

Rabinove was even blunter.

“If an amendment of this nature passes,” he said, “our whole concept of church- state separation is gone with the wind.”

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