Spurred by a controversy over prayer at a Maryland high school graduation ceremony, state lawmakers have introduced bills that a civil rights group has derided as unconstitutional and unnecessary.
Last May, a Calvert County high school student left his graduation ceremony because the audience started reciting a Christian prayer. He was arrested when he attempted to re-enter the building to receive his diploma. Although police never brought charges against Nick Becker, then 17, he engaged the American Civil Liberties Union of Maryland to consider challenging the high school's actions. Becker and the state ACLU have maintained that prayer before and during a school-sponsored event is unconstitutional.
Four Maryland delegates have introduced two different bills that would allow student prayer during school-organized events.
Delegates George W. Owings and Anthony J. O'Donnell are urging passage of a bill that would permit "student-delivered messages and prayers during certain school-sponsored events; prohibiting discrimination against a student on the basis of the content of a certain message or prayer that the student intends to deliver or does deliver." The bill, moreover, states that a school official is to "ensure that the content of the student-delivered voluntary messages and prayers is consistent with community standards and is appropriate for the event."
O'Donnell, a Republican, has defended the bill's constitutionality and notes that it is also being supported by Owings, a Democrat. O'Donnell said the idea for the bill was prompted by the Calvert County situation.
"This bill is not unconstitutional," O'Donnell said. "It is my understanding that the Supreme Court has not said that student-led, voluntary prayer is unconstitutional. We have a First Amendment, which says there shall be no establishment of religion by the government and also says there shall be not prohibition against the free exercise thereof. In our bill, there is no establishment of religion because the prayer is student-led and it states that government shall not prohibit the free-exercise of students' religious expression."
Suzanne Smith, the Maryland ACLU's legislative director, called the bill problematic on several fronts. She noted that the U.S. Supreme Court is set to hear a case from Texas that centers on the constitutionality of student-led prayer at certain school-sponsored events.
"We think this bill would be unconstitutional," Smith said. "It attempts to provide student speakers who offer messages or prayers complete control over content, but allows school officials to subject that content to community standards. While the courts have said certain types of speech may be judged according to community standards, prayer certainly does not fall into that category."
Smith also questioned whether "voluntary prayer" is truly voluntary at school-organized events where there's essentially a captive audience. She also said the bill could create establishment-clause problems by allowing state officials discretion over what types of prayers are suitable for the community.
Smith said the Maryland Assembly should wait to see how the Supreme Court rules in Santa Fe Independent School District v. Doe. In Santa Fe, the 5th U.S. Circuit Court of Appeals said it was a violation of church-state separation to permit student-led prayer at public high school football games. The high court will hear arguments in that case on March 29. "It is highly likely that the court will offer guidance on this specific issue," Smith said.
O'Donnell, however, called Smith's argument for waiting on a Supreme Court decision specious.
"I find that comment incredibly naïve," he said. "The state of Maryland is a sovereign state and proud of its heritage — it's one of the 13 founding colonies. Why should the state give up its sovereignty? The state of Maryland should state our policy."
The delegate also pointed to a provision in the state Constitution that he says supports the bill's constitutionality. That provision, Article 36 of Maryland's Declaration of Rights, states in part, "Nothing shall prohibit or require the making reference to belief in, reliance upon, or invoking the aid of God or a Supreme Being in any government or public document, proceeding, activity, ceremony, school, institution, or place."
O'Donnell added that he thought it would be an "uphill battle" to see the bill through the Assembly. "But we are engaged in that battle; in the early part of the last century the Wright brothers were not given much of a chance of getting off the ground at Kitty Hawk and yet they persevered. Isn't it a good thing they did?"
Also introduced late last month was a bill that would allow spoken prayer during the public schools' daily meditation period.
Introduced by Del. Kerry A. Hill, a Baptist pastor, the bill states that all public schools must permit "spoken prayer during the daily meditation period and at graduation ceremonies." Additionally, the bill would allow principals and teachers to "require all students to be present and participate in opening exercises on each morning of a school day and to meditate silently for approximately 1 minute" and "a student or teacher may read the holy scripture or pray."
Smith termed Hill's bill "blatantly unconstitutional."
"If students are allowed to pray during a 'moment of silence,' then they should also be able to discuss their homework," she said. "Using a moment of silence to give preference to prayer over other types of speech simply does not pass constitutional muster."
The Supreme Court's 1962 ruling in Engel v. Vitale concluded that while private student prayer at school is permissible, school-organized prayer runs afoul of the First Amendment principle of separation of church and state.
Hill did not return a call regarding his bill.