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‘Thank God for Mr. Sachs’

A group of citizens demonstrated outside the Carroll County government office building Sept. 5, 2019 to protest the Board of Commissioners' recent decision to settle a lawsuit that will end commissioner-led prayers in public board meetings.
A group of citizens demonstrated outside the Carroll County government office building Sept. 5, 2019 to protest the Board of Commissioners' recent decision to settle a lawsuit that will end commissioner-led prayers in public board meetings. (Mary Grace Keller / Carroll County Times)

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.

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Back in 1983, Robert Dubel, superintendent of Baltimore County Public Schools, requested an official opinion of the attorney general addressing whether a “student-initiated 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.

Stephen H. Sachs was United States attorney for Maryland from 1967 to 1970 and state attorney general from 1979 to 1987. His email is steve.sachs@wilmerhale.com.

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