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JUDICIAL COMMON SENSE CUTS THROUGH CHURCH-STATE QUAGMIRE

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In the whole broad field of constitutional law, no area is murkier than the area surrounding the First Amendment's Establishment Clause. The good news is that in recent months, rays of kindly light have lanced the encircling gloom.

The clause is simplicity itself: "Congress shall make no law respecting an establishment of religion." In the beginning, the clause applied only to Congress; since 1940, by a process of judicial mumbo jumbo, the courts have ruled that the Establishment Clause applies also to the states. We will not enter that briar patch today.One ray of common sense emanated last month from the pen of U.S. District Judge J. Thomas Greene in Utah. The case involved 16-year-old Rachel Bauchman, who signed up for an elective class in choral singing at West High School in Salt Lake City. She and her mother discovered, to their consternation, that the choir would be singing mostly religious music. This is, after all, mostly what choirs do. Handel was not writing gangsta rap.

The prospect offended the Bauchmans so severely that they sued the school. They asked for an injunction to stop the horrid practice. The choir teacher, Richard Torgerson, volunteered to excuse Rachel from singing in any performance that aggrieved her Jewish sensibilities; he would give her an A for the course anyhow. She refused the offer, and the case went to Greene.

Singing religious songs as a class assignment, he sensibly held, is not a religious exercise to be equated with classroom prayers or Bible readings. The teacher's choice of choral scores had a primarily secular purpose; the course was not intended to advance religion but to advance choral singing; there was no entanglement of church and state.

"Public schools are not required to delete from the curriculum all material that may offend religious sensibility."

If someone will sound an A, let us sing amen to that.

A second ray of sunshine came in May from District Judge Sarah E. Barker in Indianapolis. A law professor at Indiana University and two of his students, out for a spring lark, sued on April 18 for an injunction to forbid an invocation at the university's graduation ceremonies May 6. On May 4 Barker refused to grant it.

The professor, who had attended only one commencement in 15 years, swore that the traditional practice nonetheless offended him personally and mightily. The pronunciation of a benediction would have no secular purpose, he said; its primary purpose would be to advance religion, and it would fatally entangle the state of Indiana with an establishment of religion.

Barker did not call the suit frivolous, but she came close to it. The plaintiffs had relied upon a landmark case in the Supreme Court holding that a state may not sponsor such graduation rites for elementary and middle school pupils. The high court's reasoning in Lee vs. Weisman was that impressionable children might get an impression that a public school was trying to sign them up for membership in a local synagogue.

Professors and graduate students, Barker suggested, must be made of sterner stuff. They are mature enough to stand firm against 30 seconds of religious exposure once a year. "The special solicitude for younger students traditionally shown by federal courts is not required here."

At the college level, where no graduating student is coerced to attend a commencement ceremony, the traditional prayers do indeed serve a secular purpose; they tend to solemnize the occasion.

If we may hear another A, let the choir sing amen to that, too.