Why Reagan grabbed the initiative on school prayer
Boston — President Reagan may have to walk a tightrope to avert a constitutional crisis over school prayer.
Succumbing to strong pressures from the right-wing Christian fundamentalists and political conservatives to bring prayer back into the public schools, Mr. Reagan has officially endorsed the framing of a constitutional amendment to accomplish this.
By so doing, observers believe, the President is trying to head off legislation now before Congress that would not only reinstitute voluntary prayer in the schools, but remove the US Supreme Court's jurisdiction to review cases in this area.
Most judicial interpreters see the latter as patently unconstitutional -- and disruptive of the separation of powers principle. They say such a bill -- with a court-stripping proviso -- would not likely pass a test of its constitutionality.
Civil-rights groups and even many church leaders claim that Reagan's proposal is also unconstitutional. They say it violates the First Amendment, which says in part: ''Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.''
However, administration officials seem willing to take their chances. Their reasons seem to be mainly political. They sense growing public support to bolster religious and spiritual values among young people. (Republicans insist that voluntary prayer in the classroom has more than 75 percent approval among Americans. A New York Times/CBS poll last spring found 69 percent favored ''organized prayer'' in schools.)
Also, some observers see the President's move as an effort to rein in the Moral Majority and other so-called New Right groups that demand radical action on such issues as abortion, capital punishment, and busing, as well as school prayer. Reagan hopes that his official endorsement of school prayer will satisfy these groups, even though it still falls short of their proposed hard-line action banning judicial review.
At almost the same time as Mr. Reagan was making his White House announcement favoring the constitutional amendment on prayer, his attorney general, William French Smith, was advising the House and Senate Judiciary Committees that a bill to bar court review of school prayer was probably unconstitutional -- and, in any case, certainly unwise.
Mr. Smith's legal analysis seemed to undercut a theory now being voiced by many conservatives that under the Constitution's so-called ''exceptions clause'' Congress can limit certain Supreme Court powers.
In a letter to Senate Judicial Committee chairman Strom Thurmond (R) of South Carolina, the attorney general said: ''Congress may not, however consistent with the Constitution, make 'exceptions' to Supreme Court jurisdiction which would intrude upon the core functions of the Supreme Court as an independent and equal branch in our system of separation of powers.''
What is not known now is whether the hard-line New Right, particularly religious fundamentalists, will be willing to back off from their court-stripping legislation in the light of Mr. Smith's warnings and President Reagan's new proposal.
In an effort to bring what they call the ''teaching of God'' into the schools , these groups are also working to get creationism, based on a literal interpretation of Genesis, accepted in academic curricula along with the theory of evolution. An Arkansas court recently ruled against this plan. But the issue will come up again soon in Louisiana and likely elsewhere.
School prayer advocates received a major setback when the US Supreme Court ruled in 1962 that organized religious exercises in school, even if voluntary, are unconstitutional. However, it did not outlaw private prayer by individuals.
Should a school prayer amendment be ratified, a Supreme Court test is almost inevitable. But then the issue should be simply whether this practice violates the ''establishment'' and ''free exercise'' provisions of the Constitution's First Amendment. It wouldn't be muddled by additional ''separation of powers'' issues -- which in effect would put the court in the almost preposterous position of ruling on its own jurisdiction.
Mr. Reagan, say analysts, wants to avoid falling off the tightrope on the latter. With the former, he may be able to maintain at least some of his political balance.