Nov. 18, 1999, 6:41PM

Religious rights of the minority also need protecting


I wasn't allowed to be Mary in the first grade play, even though I had the
longest hair and a very loud voice, because I was Jewish. Some kids made fun
of me. I still remember it, nearly 40 years later.

By the time I got to law school, that could not have happened. In a series of
decisions based on the First Amendment prohibition of the establishment of
religion, the Supreme Court had taken Mary out of the public school, along
with prayers in classrooms and at school events. Among the rationales
emphasized by the court in these decisions was the humiliation and ridicule of
children whose religious views were in the minority in their classrooms.

Last Monday, the Supreme Court agreed to decide whether to let religion
back in, not only to voluntary activities, but to school events for all students.
The latest case is one in a series brought by students complaining of the
infringement of their free speech rights, a change of strategy for the movement
to bring religion into schools that is part of a litigation campaign orchestrated
as carefully and smartly as the one the NAACP waged for civil rights.

The effort began with the right to pray before or after school on school
property, moved next to a brief message in a graduation speech -- upheld at
the court of appeals level -- which led one school district to adopt a policy
that led one student at a graduation ceremony in 1994 in Galveston to end his
prayer by saying, "Now, each of us must stand on the solid rock of Jesus

Two girls, one a Mormon who was subject to the ridicule of a teacher who
called her religion "cult-like" and "evil," challenged the policy and won 9-7
with the lower court sitting, as it does only rarely, with all of its judges.

It takes four justices to agree to hear a case, which is often a sign that at least
four of them think it was decided wrongly below. Not coincidentally, the last
big ruling in the Supreme Court -- that a public school couldn't invite ministers,
priests, rabbis or other religious leaders to give prayers at school events --
was 5 to 4. The next president will almost surely determine the course of the
law in this area.

As a matter of law, there should be clear lines between truly voluntary
activities at public schools and ones where attendance is required or expected.
A Mormon student doesn't have to go to the after-school prayer group, but
she shouldn't have to skip graduation. The reason to draw that line is to
protect another basic First Amendment freedom, the free exercise of religion,
which is what students are engaged in when they pray. By limiting some
students' freedom to practice religion in public, we free other students to
practice their religions without being excluded and ridiculed.

The majority doesn't need such protection in the same way a minority does.
The majority can protect its free exercise of religion through the political
process. If any religion were going to be established, it would be -- and
usually is, as in this case -- the majority religion. It is the one Mormon girl in
the class that the bill of rights exists to protect, the minority whose rights will
not necessarily be protected in the political process.

Lest there be any doubt, consider the "friend of the court brief" in this case.
Speaking for the state of Texas, it's Gov. George W. Bush.

Estrich is a nationally syndicated columnist based in Los Angeles.