MEMBERS of the House who are being pressured to sign a discharge petition aimed at restoring prayer to the public schools should think long and hard before they decide what to do. The bill the petition would bring to a vote on the House floor is an attack on religious freedom, and invitation to a confrontation of Congress with the federal judiciary and an effort to shatter the uniform protection the Bill of Rights provides to all Americans.
The bill has been languishing in the House Judiciary Committee since it was passed by the Senate a year ago. It purports to prevent all federal courts form hearing challenges to state laws that permit voluntary prayers in the schools. Getting it, or something like it, to a final vote in the House has become the aim of a coalition of television evangelists, conservative religious groups and others who believe the Supreme Court was wrong when it banned religious exercises from the schools.
The first thing that is wrong with this proposed legislation is that it is a back-door effort to amend the Constitution. Its goal is to alter the Supreme Court's interpretation of a critical part of the Bill of Rights without going through the difficult procedures required to pass a constitutional amendment. Under its terms, each of the 50 states supreme courts would be given power to overrule the Supreme Court on one narrow but vital portion of constitutional law. That, alone, is a serious threat to the structure of government. But there is more.
If the proposed legislation is itself constitutional -- and that is questionable -- the meaning of the First Amendment could, and undoubtedly would, vary from state to state. The uniformity of the federal rights of all citizens, a uniformity the Supreme Court has worked to establish ever since the Civil War, would break down. A precedent would be established so that other rights, like freedom of speech, could be fragmented state by state if Congress decided it disliked the way the Supreme Court was enforcing them.
The final word on the constitutionality of their proposed legislation would, of course, rest with the court itself. Would the justices agree to give up some part of the power they, and other federal judges, now hold? They might, because Congress does have power to alter some of their jurisdiction. Or they might not, because this proposal seems to overreach the intent of the provision giving Congress that power.
Is this effort worth such a possible confrontation? We doubt it. The Supreme Court, despite what the petition's proponents say, never forbade a child to pray silently at school. It forbade the teaching of religion in the public schools. Its decision correctly interpreted the intent of those who wrote the First Amendment and wisely shut off the competition among religious groups over whose religion should be taught in schools. Members of the House would be equally wise to keep the bill to change that buried in the Judiciary Committee.