Uproar Over Silence

By Michael S. Serrill.

Ishmael Jaffree had had enough. Throughout the 1981-82 school year, three of his children had been confronted with vocal prayer sessions at their grade schools in Mobile. Jaffree, an agnostic and a lawyer, had objected to the prayers, but got nowhere. Finally he sued, and won rulings that suspended not only spoken prayers but also a state law authorizing a daily moment of silence "for meditation or voluntary prayer." Jaffree's victory on the first issue was not surprising. Spoken prayers, okayed by the Alabama legislature in 1982, were in open defiance of the U.S. Supreme Court, which has insisted since 1962 that organized vocal praying in public schools violates the First Amendment. But Jaffree's attack on Alabama's moment of silence was more problematic. And last week, after the high court ruled on that emotional question for the first time, the reaction on all sides was anything but quiet.

In a 6-to-3 decision, the court struck down Alabama's 1981 moment-of-silence law because of its "endorsement and promotion of prayer." Justice John Paul Stevens, writing for five members of the majority, noted that the 1981 law supplemented an already required daily period of silent "meditation" by adding the phrase "voluntary prayer" to the official reason for silence. Asked at a lower-court hearing if there was any reason for the new law besides a desire to reintroduce prayer in the public schools, the bill's chief sponsor, State Senator Donald Holmes, replied, "No, I did not have no other purpose in mind." That, said Stevens, "is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion," allowing an individual "to select any religious faith or none at all."

Stevens added, however, that Alabama's attempt to reintroduce prayer is "quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence." In a dizzying array of dissents and concurrences, the fractured court indicated that at least five Justices -- and perhaps all nine -- are willing to uphold moments of silence if legislatures and teachers do not explicitly encourage students to use the time to pray.

Despite the court's effort to state a narrow conclusion, its decision generated apocalyptic pronouncements of approval and criticism. The ruling, cheered Ira Millstein of the American Jewish Congress, gives "no aid or succor to anyone who wants prayer in the public schools." Agreeing with that analysis but not the result, Republican Governor John Ashcroft of Missouri, a born-again Christian, denounced the court for its "phobic response to the six-letter word prayer." Conservative Activist Paul Weyrich, recalling earlier obscenity cases, objected, "It means the f-word is protected, but you still can't think God." Cried Michigan State Representative Ethel Terrell: "What has happened in the Supreme Court is unconstitutional, according to the Constitution."

Former Solicitor General Rex Lee, whose office argued in favor of the Alabama law, expressed "great surprise," given that the court seemed to be abandoning its recent inclination to "accommodate" religion. It had done so, for example, in cases upholding legislative chaplains and government- sponsored Nativity scenes. Justice Sandra Day O'Connor's sixth vote concurring with the majority was another shock to conservatives. Her failure to support a more pro-prayer position, as did Dissenters Warren Burger, William Rehnquist and Byron White, is "staggering," said Dan Alexander, president of the Mobile County school board at the time Jaffree sued and now head of the national Save Our Schools movement. "What good is it going to be to wait two or three more years for Reagan to make more appointments?"

No waiting at all is necessary in the 25 states that have moment-of-silence statutes; if they move to eliminate any endorsement of prayer, the practice can apparently win approval from the current court. Massachusetts started the machinery to do that the day after the Jaffree decision. Many backers of school prayer, however, want vocal affirmation, not silent opportunity. They hope last week's ruling has roiled enough anger to energize the flagging effort to pass a constitutional amendment formally authorizing voluntary school prayer. "We're going to turn the heat up on Congress," vows conservative Fund Raiser Richard Viguerie. For all the turmoil and upset generated, the case had a calming effect on at least one person. Said a delighted Ishmael Jaffree: "Now I know how to spell relief."

With reporting by Anne Constable/Washington, with other bureaus