‘Thank God for Mr. Sachs’

Baltimore Sun - - COMMENTARY - By Stephen H. Sachs

My eye caught the head­line on a Sun ed­i­to­rial last week that crit­i­cized com­mis­sioner-led prayers at meet­ings of the Car­roll County Board of Com­mis­sion­ers. The head­line read, in part, “re­li­gion and govern­ment don’t mix.”

An episode I ex­pe­ri­enced as Mary­land’s at­tor­ney gen­eral years ago prompts me to add this qual­i­fier: Re­li­gion and govern­ment don’t mix — ex­cept when they do.

Back in 1983, Robert Dubel, su­per­in­ten­dent of Bal­ti­more County Pub­lic Schools, re­quested an of­fi­cial opin­ion of the at­tor­ney gen­eral ad­dress­ing whether a “stu­den­tini­ti­ated group” could en­gage in “re­li­gious ac­tiv­ity — a Bi­ble study and wor­ship ses­sion dur­ing the lunch hour at Ca­tonsville Se­nior High School.”

I was trained to be­lieve in a stout “wall of sep­a­ra­tion be­tween Church and State,” as Jef­fer­son char­ac­ter­ized the “es­tab­lish­ment” clause of the First Amend­ment. I sub­scribed to its corol­lary: “a union of govern­ment and re­li­gion tends to de­stroy govern­ment and to de­grade re­li­gion,” as the Supreme Court once put it. And I seized on Su­per­in­ten­dent Dubel’s in­quiry as an op­por­tu­nity to lay down my per­sonal First Amend­ment marker.

I en­listed five very able as­sis­tants (all hands on deck, for this one) to work with me. To­gether we forged a 30-page doc­u­ment — cer­tainly far more than the su­per­in­ten­dent wished for — in an ef­fort to pro­duce gen­eral guide­lines that would ap­ply to sim­i­lar sit­u­a­tions that might arise across the county school sys­tem, else­where in Mary­land, even, I dared hope, through­out the nation.

Our opin­ion was an ode to the First Amend­ment’s Es­tab­lish­ment Clause that, broadly speak­ing, pro­hibits gov­ern­men­tal ac­tiv­ity that ad­vances re­li­gion or oth­er­wise en­tan­gles govern­ment with re­li­gious ac­tiv­ity.

We ac­knowl­edged, a bit dis­mis­sively, that stu­dents were free to as­sem­ble and pray or study Bi­ble in their free time (the school “should no more in­ter­fere with a group of stu­dents read­ing and dis­cussing the Bi­ble in the cafe­te­ria than it would with a group of stu­dents at the next ta­ble study­ing for their his­tory exam.”)

But the thrust of our opin­ion — the heart of the mat­ter in our sep­a­ra­tionist view — was our ar­tic­u­la­tion of strin­gent cri­te­ria en­sur­ing that the wall of sep­a­ra­tion would not be breached.

If a school al­lows for stu­dent “free time” dur­ing the school day, we opined, stu­dents may en­gage in “stu­dent-ini­ti­ated” re­li­gious ac­tiv­ity in any area open to “gen­eral stu­dent use” on con­di­tion that “the school re­main wholly un­in­volved in that re­li­gious ac­tiv­ity.” To guar­an­tee that the school’s re­la­tion to re­li­gion was merely “pas­sive ac­com­mo­da­tion” we an­nounced the fol­low­ing safe­guards:

No school personnel may “su­per­vise, mon­i­tor or par­tic­i­pate in any re­li­gious ac­tiv­ity”;

Meet­ings of re­li­gious groups may not be an­nounced “through any medium of com­mu­ni­ca­tions con­trolled by the school”;

No one other than stu­dents may par­tic­i­pate in the re­li­gious ac­tiv­ity;

The space be­ing used must be avail­able to all stu­dents for any law­ful non-dis­rup­tive pur­pose;

And school au­thor­i­ties must never be called upon to grant or refuse per­mis­sion for re­li­gious ac­tiv­ity.

Our opin­ion con­tained the oblig­a­tory riot of case ci­ta­tions, well over two dozen foot­notes and a touch of pom­pos­ity and rhetor­i­cal ex­cess (“We think we dis­cern in the re­ported cases ... a First Amend­ment merid­ian ...”). But its ma­jor theme was crys­tal clear: a vi­brant af­fir­ma­tion of the con­sti­tu­tional priv­i­lege af­forded sec­u­lar space in pub­lic ed­u­ca­tion. Re­li­gious ob­ser­vance, while treated with re­spect, was shunted to the side.

I was proud of our work. I looked for­ward to fa­vor­able no­tices.

Imag­ine my sur­prise at the ini­tial re­views. Their head­lines were vari­a­tions of “AG Says School Prayer OK!” or “Sachs Says Kids Can Pray!”

I was dis­ap­pointed. But I had to ad­mit that the jour­nal­ists got it right. Not­with­stand­ing the care­ful schol­ar­ship and sec­u­lar fer­vor of my team and me, af­fir­ma­tion of that wall of sep­a­ra­tion was not news. Per­mis­sion for stu­dent prayer in school, even if given grudg­ingly, was.

The ec­static re­ac­tion of a young stu­dent at Ca­tonsville High put the sig­nif­i­cance of our opin­ion be­yond dis­pute. A TV re­porter sought her on cam­era re­ac­tion: “Thank God for Mr. Sachs!” she ex­claimed.

Thus did re­li­gion and govern­ment mix nicely. To my sur­prise and — truth to tell — to my de­light.

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