*1 ENGEL et al. v. VITALE et al. Argued
Nо. April 468. 1962. Decided June William J. argued petitioners. Butler for cause With him Stanley on the was briefs Geller.
Bertram B. Daiker argued the respondents. cause for With him on the was Wiljord briefs E. Neier.
Porter R. argued Chandler the cause for intervenors- respondents. him With on the briefs were Thomas J. Ford and Richard E. Nolan. A.
Charles Brind filed brief for the Board of Regents University of the State of New York, as amicus curiae, in opposition to petition for certiorari. curiae,
Briefs of amici urging reversal, wrere filed Herbert A. Wolff, Leo Nancy Rosen and Wechsler for the American Ethical Union; Lukas, Capian, Louis Edwin J. Hartman, Paul Theodore Leskes and Sol Rabkin for the American Jewish al.; Committee et Pfeffer, and Leo Weinstein, H. Lewis Wald, Albert Shad Polier and Samuel Brennglass Lawrence Synagogue Council America et al.
A curiae, brief amici urging affirmance, was filed by Roger Foley, D. Attorney General of Nevada, Robert Holt, Frank Arizona,
Pickrell, Attorney General *2 Coles, Attor- L. Arkansas, Albert of Attorney General Ervin, Attorney W. Richard Connecticut, of ney General Cook, Attorney General Eugene Florida, of General Idaho, of Benson, Attorney General Frank Georgia, of Wil- Indiana, of Steers, Attorney General Edwin K. Kansas, Jack of General Ferguson, Attorney M. liam Louisiana, Thomas of Attorney Gremillion, General P. F. T. Patter- Maryland, Joe Finan, of Attorney General B. Maynard, Mississippi, William son, of Attorney General Sills, J. Arthur Hampshire, of New Attorney General Hartley, E. Attor- Jersey, Earl of New Attorney General gum, Attorney R. Leslie Bur Mexico, ney General of New Stahl, Attorney General Dakota, David General North Nugent, Joseph Attorney General Pennsylvania, J. McLeod, R. General of Attorney Island, Rhode Daniel Miller, Attorney A. C. of South Carolina, General South Wilson, Attorney Texas, Will General Dakota, Robertson, Attorney Virginia. C. Donald General of West opinion Mr. delivered the of the Court. Black Justice respondent Board of Education Free Union Hyde acting Park, York, School District No. New New capacity law, its under state directed the School following District’s principal prayer to cause said by aloud each class in the of a at presence teacher beginning day: of each school
“Almighty God, acknowledge we dependence our upon Thee, beg Thy blessings us, we upon parents, our and our Country.” teachers daily This prоcedure adopted was on the recommenda- tion of the Regents, governmental State Board of agency created the State Constitution to which the New York Legislature granted has broad supervisory, executive, and legislative powers public system.1 over the State’s school composed prayer These state officials which they published part recommended their “State- on Spiritual Training ment Moral and Schools,” saying: “We believe that will Statement be sub- scribed to all men good will, and women of and we call all of them to aid in giving program.” life to our Shortly practice reciting after Regents’ prayer adopted by was District, parents School brought pupils ten this action in a York New State Court insisting that use of this official contrary
schools was beliefs, religions, to the practices of both Among themselves their children. *3 things, other these parents challenged the constitution- ality of both the state law the authorizing School District to prayer direct use of public the schools and the School regulation ordering District’s the of par- recitation this prayer ticular ground on the that these of аctions governmental agencies of part violate that the First Amendment of the Federal Constitution which commands that “Congress shall respecting make no law an estab- lishment of religion” command which was “made —a applicable to the State of New York the Fourteenth of the Amendment said Constitution.” The New York of Court Appeals, Judges over the of Dye dissents Fuld, sustained an order of lower the state courts which upheld had power of New York to Regents’ use the prayer as a part of daily procedures public its schools so long as the schools did compel any not pupil join the prayer over his or his parents’ objection.2 1 See New York Constitution, V, §4; Art. New York Education seq., 202, Law, 120 et 101, seq., 704, et 214-219, 224, §§ seq. 801 et 174,
2 10 N. Y. 2d
We First and Fourteenth by the involving rights protected Amendments.3 system its school by using think that
We State Regents’ prayer, encourage recitation wholly practice inconsistent adopted has a York of New can, course, There thе Establishment Claüse. daily classroom program New York’s no that be doubt Regents’ prescribed blessings invocation God’s is a avowal activity. It solemn prayer is blessings for the supplication faith divine always been has prayer nature of such Almighty. The objected reciting prayer: protect those who procedures petitioners their rights say accorded is not to “This safeguards the ‘free exercise’ clause do not mandate under children enough pressures. It is on against such embarrassments adopted by regulations, New score, however, such as were City’s its released time of Education connection with York Board any adopted, making nor program, that neither teachers be clear nonpartici- authority may participation or on comment other school require posture or pation suggest nor exercise be or not worn. Non- language or dress be worn or not used be used during remaining may form either of silent participation take the desires, being parent excused exercise, or if the or child so provi regulations make entirely must also exercise. Such nonparticipants who arе to excused from sion for those *4 by provision decision to be made a matter for exercise. The exact court, of constitu board, within the framework rather than provision requirements. fall a that framework would tional Within assembly proceed while non prayer participants to a common permitted rooms, nonparticipants or participants attend other opening separate a few minutes late or attend to arrive at school equality par exercises, any treats with both other method which 2d, 2d, nonparticipants.” 18 Misc. at 191 N. Y. S. ticipants and affirming opinion Appellate Division See also the of the at 492-493. court, reported App. at 11 Div. 2d 206 N. Y. S. the trial that of 2d 183. S. 924. 368 U.
religious, none respondents has denied this and the trial expressly court so found: religious recognized by
“The of prayer nature was Jefferson and has been concurred in theological writers, Supreme the United States and State Court courts and administrative officials, including New York’s Commissioner A of Education. committee of the New York Legislature agreed. has
“The of Regents curiae, Board as amicus respondents and all religiоus intervenors concede the nature of prayer, distinguish but seek to this prayer because it spiritual is based on our .”4 heritage. . . petitioners contend among other things that state requiring laws or permitting Regents’ use prayer must be struck down as a violation of the Estab- lishment Clause because prayer composed by was governmental officials governmental as a of a part pro- gram to further religious peti- beliefs. For this reason, argue, tioners Regents’ State’s use of the its system school breaches the constitutional wall of separation between Church and agree State. We that contention since we think that the constitutional prohibition against respecting laws an establishment of religion must at least mean that country it is no part government business of compose prayers for group of the American people to as a part recite of a religious program carried on government. is a
It history matter of very that this practice of estab lishing governmentally composed prayers services was one the reasons which caused many early of our colonists to England leаve seek freedom in America. The Book of Common Prayer, 2d, Misc. 671-672, 2d, at 191 N. Y. S. at 468-469.
426 and direction governmental under was created
which in 1548 and Parliament approved was Acts and form accepted detail out minute 1549,5 set to be ceremonies and prayer other content Engl Church tax-supported established, in the used and what should the Book over and.6 The controversies peace disrupt threatened repeatedly be its content forms of accepted country par of the changed with the views church established at the time.7 control happened ruler that ticular varying reli some of groups representing Powerful themselves people struggled among gious views of the and upon views the Government particular their impress 5 Uniformity VI, 1, of Service c. “An Act for 2 & 3 Edward entitled Realm”; throughout 3 &:4 Administration of the Sacraments abolishing putting 10, VI, “An Act for the Edward c. entitled Bopks Images.” away of divers 6 pf provisions versions of the Book of Common The various jn Encj'clopaedia Britannica, Prayer set out broad outline in the are description, (1957 ed.), complete pp. a more 420-423. For Vol. 18 (1900). History Prayer Pulían, The of the Book Common see 7 Prayer major was The first revision of the Book of Common VI, during reign & Edward c. 1. of Edward VI. 5 6 made 1552 by Alary who 1553, VI abolished In Edward died was succeeded entirely. Prayer Mary, 1 c. But the Book of Common 1558, important with was restored accession of Elizabeth the Book given been Edward VI. Eliza alterations from the form it had beth, was resentment to this amended form of the Book c. 2. The during but, upon kept firmly reign her under control of Elizabeth 1603, 1,000 petition signed'by than Puritan ministers death in more King asking presented I for further alterations in the was James the Book retained substan Book. Some alterations were made and tially completely suppressed again this it was in 1645 as a form until Shortly Puritan Revolution. after the restora result successful reintroduced, II, again tion in of Charles the Book was & again accept II, than Charles c. alterations. Rather 2,000 some ministers their benefices. form of the Book Puritan vacated generally Pulían, History Prayer of the Book of See Common vii-xvi; (1957 Encyclopaedia ed.), (1900), pp. Britannica Vol. pp. 421-422. *6 their
obtain amendments of the Book more suitable to respective religious notions of how services be con should in establishment ducted order the official particular advance thеir beliefs.8 Other would groups, lacking necessary political power influence to on the matter, England Government decided to leave and its in America established church and seek freedom from England’s governmentally supported ordained and religion.
It anis of history unfortunate fact that when some of very groups strenuously which had most opposed the established Church of England found themselves suffi in ciently of governments control colonial in country to write prayers law, they their own into passed laws mak ing religion their own the official religion respec of their tive Indeed, colonies.9 as late as the time of the Revolu example, For attempted modify the Puritans twice the Book of Prayer attempted Common destroy story once it. The of struggle modify their reign vividly the Book in the I of Charles Pulían, History summarized in Prayer, Book Common at p. King actively supported xiii: “The those members of the Church England who were anxious to vindicate its Catholic character and maintain the approved. ceremonial Laud, which Elizabeth had Archbishop Canterbury, was the Equally leader of this school. opposition resolute in his to thе distinctive tenets of Rome and of Geneva, enjoyed he hatred both Jesuit and Calvinist. He helped bishops, large the Scottish had who made concessions Presbyterian uncouth worship, habits of up to draw a Book of Com Prayer mon for Scotland. It contained Communion Officeresem bling that of the book of 1549. It came into use and met opposition. a bitter vigour and barbarous of the Scottish strengthened Protestants English sympathisers. hands of their Laud and executed, Charles were Episcopacy abolished, was the use Prayer Book of Common prohibited.” was description For a some of the early laws enacted theocratic governments England, in New see Farrington, Main Currents Thought American (1930), pp. 5-50; Vol. Whipple, Ancient Our (1927), 63-78; pp. Liberties Wertenbaker, Oligarchv The Puritan (1947). least churches at there established
tionary War, were reli and established colonies thirteen former eight five.10 But success four the other gions at least was domination English political against ful Revolution practice of to the opposition intense shortly followed crystallized opposition religion by law. This establishing Virginia where political force into an effective rapidly Lu Presbyterians, religious groups minority such *7 gained strength had such therans, Quakers Baptists Episcopal the adherents to the established Church minority 1785-1786, In actually themselves. were Church, by led James opposed to the established those who, though themselves Jefferson, Madison and Thomas dissenting any religious groups, of these not members grounds religious by law on opposed all establishments obtained the enactment of the famous' principle, “Virginia all Religious Liberty” Bill for far groups placed equal footing were on so as the though far-reaching wTas State concerned.11 Similar less 10 England The Church of was the church of at least established Maryland, Virginia, Carolina, five colonies: North South Carolina Georgia. controversy There seems to be some toas whether that officially Jersey was church in York New but established New support there is no doubt that it received substantial from those Cobb, Liberty (1902), See Religious States. The in Rise America 338, pp. Massachusetts, Hampshire Connecticut, In New Congregationalist officially Pennsyl was In Church established. Delaware, equally vania and all were Christian sects treatеd in most against respects. situations but Catholics were in discriminated some generally Cobb, (1902). Religious Liberty See The Rise of in America enjoyed equal privileges In Rhode Island all Protestants but it is not Compare Fiske, whether were vote. clear Catholics allowed to (1899), History p. Cobb, in Critical Period American The. Religious (1902), Liberty pp. Rise America 437-438. Hening, Virginia (1823), Statutes of entitled "An act establishing religious story surrounding freedom.” The of the events the enactment of this was law reviewed Everson v. Board of Education, Court, pp. 11-13, 330 U. S. at both and in the passed in legislation being was considered and other States.12
By adoption the time of the of the Constitution, our history widespread shows that there was a awareness among many dangers Americans of a union of Church and State. people knew, These some of them personal bitter one experience, greatest dangers to the freedom of the worship individual owrn way lay his in the Government’s placing its official stamp of approval upon particular one kind of or particular one form of religious They services. knew anguish, hardship and bitter strife that could come when zealоus groups struggled with one another to obtain the Government’s stamp approval from each King, Queen, Protector that came to temporary power. The Constitution was intended to part avert a of this danger by leaving government of this country hands of people rather than hands of monarch. But safeguard was enough. not Our *8 Founders no were willing more to let the content of their prayers and privilege their of praying they whenever pleased be influenced the ballot box than they were to let these vital personal matters of depend conscience upon the succession of monarchs. The First Amend ment was added to the Constitution a guaran to stand as tee that neither power the nor prestige the of the Federal Government would be control, used to or support influ ence the kinds of prayer the American people say— can dissenting opinion Rutledge, of Mr. pp. Justice at 33-42. See also Fiske, The Critical History Period in (1899), American pp. 78-82; James, Struggle Religious Liberty The for Virginia (1900); Thom, Struggle Religious The for Virginia: Baptists Freedom in The (1900); Cobb, Religious Liberty The Rise of (1902), pp. America 74-115, 482-499. Cobb, See Religious Liberty The Rise of (1902), America pp. 482-509. to the subjected be must not religions people’s
that a new time change each government pressures that to office. Under is elected administration political establish against governmental prohibition Amendment’s of the provisions by the religion, as reinforced ment country, be in this government Amendment, Fourteenth by law prescribe federal, power is without it state or used as which is to be prayer form of any particular govern- program on carrying prayer religious activity. mentally sponsored prayer New York’s state doubt that There can be no em religious beliefs officially establishes program argu Regents’ respondents’ prayer. bodied upon largely which is based contrary, ment to is Regents’ prayer contention “non-denomina as modified and program, tional” the fact pupils all courts, require by state does not approved wish do so permits those who prayer but recite room, ignores from the to remain silent be excused defects. program’s of the constitutional essential nature may denomina- the fact Neither on the fact that its observancе tionally neutral nor the voluntary can free part of the students serve to Clause, might as it the limitations the Establishment Amendment, First Clause, from the Free Exercise of the operative against both of which are the States virtue two Although Amendment. these Fourteenth two may overlap, they in certain instances forbid clauses quite upon governmental different kinds of encroachment Clause, freedom. The Establishment unlike the Clause, depend any showing Free Exercise does not *9 governmental compulsion of direct and is violated of laws which establish an religion enactment operate those laws directly whether to coerce nonobserv- course, or This ing individuals not. is not to say, of officially a prescribing particular laws form worship do not involve coercion of such individuals. govern When power, prestige support and financial placed ment behind a particular religious belief, the indirect pressure upon coercive minorities con form prevailing to the officially approved religion is plain. purposes But underlying the Establishment Clause go much further than that. Its first and most imme purpose diate rested оn belief a govern union of ment and religion destroy tends to government and to degrade religion. history of governmentally estab lished religion, England both and in this country, government showed that whenever had allied itself with particular one form of religion, the inevitable result had been that it had incurred hatred, disrespect and even contempt contrary those who held beliefs.13 That same history many people showed that had lost their respect for any religion that had relied support gov spread ernment to its faith.14 The Establishment Clause “13 ttempts by legal sanctions, to enforce [A] acts obnoxious to so great proportion a Citizens, tend to general, enervate the laws in and to Society. slacken the bands of If it be difficult to execute law generally which is not necessary salutary, deemed or what must be the case where it is dangerous? deemed invalid and and what may be the striking example effect of so impotency in the Gov ernment, general authority.” on its Memorial and Remonstrance against Religious Assessments, Writings II of Madison 14“It is moreover profess to weaken in those Religion who pious confidence in its excellence, innate patronage and the of its Author; reject and to suspicion foster those still it, who its friends are too conscious of its fallacies, to trust it to its own [Experience . . . merits. witnesseth that ecclesiastical establish ments, purity of maintaining efficacy instead Religion, have contrary operation. During had a almost fifteen centuries, has the legal Christianity establishment been on trial. What been have places, its pride fruits? More less in all and indolence in the Clergy; ignorance servility laity; both, superstition,
432 part on the of principle an expression
thus stands personal,' religion is too of our Constitution Founders perversion” its “unhallowed holy, permit to sacred, too too Estab purpose of the magistrate.15 Another by a civil of historical upon rested an awareness Clause lishment religions and reli governmentally established fact that in The Founders hand hand.16 go gious persecutions Book of Common a after the only years few knew that form serv religious of Prayer only accepted became England, an Act of Uni of ices the established Church Englishmen all to attend formity passed compel was to conduct make it a criminal offense to and to those services 17—a law other kind gatherings or attend Christianity Enquire for bigotry persecution. of the Teachers of and every greatest lustre; appeared those of ages in which it in its incorporation policy.” ages prior sect, point to the to its Civil Id., at 187. against Religious Assessments, II and Remonstrance Memorial Madison, Writings at generous departure a proposed is from establishment “[T]he persecuted oppressed of which, offering asylum policy, an to the country, every Religion, promised a lustre our Nation melancholy mark number citizens. What a an to the of its accession asjdum holding degeneracy? is Instead forth the Bill of sudden signal persecution. persecuted, . . . Distant it itself Inquisition may present form, differs from be, in from the it as it its only degree. step, is the first the other last The one magnanimous sufferer under cruel career of intolerance. The scourge foreign Regions, the Bill as a Beacon on must view liberty haven, warning where Coast, him to seek some other repose may philanthropy offer more certain in their due extent Id., at 188. his troubles.” Uniformity VI, entitled “An Act for the 5 & 6 Edward c. throughout the Realm.” of Sacraments of Sеrvice and Administration Mary during reign but repealed revived This Act was supra. The reasons which led See note of Elizabeth. accession preamble: in its “Where this statute were set out enactment Authority very godly Order set forth there hath been a Prayer Administration the Sacra- Parliament, Common consistently dissenting was flouted groups England and which contributed widespread *11 persecutions of people like in Bunyan persisted John who holding meetings “unlawful [religious] great ... the disturbance and of good distraction of subjects this . kingdom . . they And knew similar persecu that tions had received the of sanction law in of several in colonies this country soon after the establishment of religions in large those colonies.19 It was part to get completely away from systematic this sort of reli gious persecution that brought the Founders being into our Nation, Constitution, Bill Rights and our of with prohibition against its any governmental establishment of religion. The New York officially prescribing laws Regents’ prayer are purposes inconsistent both of the Establishment and Clause with the Establishment Clause itself. argued
It has been apply the Constitution such a way prohibit as to state respеcting laws merits to Tongue be used England, in Mother within the Church of agreeable to the Church, very Word of God and the Primitive com- good People fortable to desiring all Conversation, to live in Christian profitable and most Realm, upon to the Estate of this the which the Mercy, Blessing Favour Almighty readily and is in God no wise so plenteously poured and using Prayers, Common due of the Sacraments, preaching and often Gospel; of the with the Devotion (1) yet notwithstanding, great Hearers: And this Number of People in Realm, following divers Parts Sensuality, of this their own living Knowledge either God, wilfully without due Fear do damnably Almighty before God abstain and refuse to come to their Parish Prayer, Churches and other Places where Common Preaching Sacraments, Administration of the of Word God, upon Sundays is Days used Holydays.” and other ordained to be 18 Bunyan’s own account of his trial is set forth in A Relation Imprisonment reprinted Bunyan, of Mr. John in Grace Abound ing Pilgrim’s Progress (Brown The 1907), ed. at 103-132. 19For a vivid account of some of persecutions, these see Werten- baker, Oligarchy (1947). The Puritan schools services
establishment prayer. or toward hostility religion toward to indicate a history wrong. course, cоuld be more Nothing, And religion. history inseparable of man is beginning say since the much it is not too perhaps believed that devoutly history many people have of that world than this wrought by prayer things “More are men who largely due to It doubtless dreams of.” was that caused grew up a sentiment this that there believed officially established the cross-currents men leave Europe and persecution in religions state country hope they filled with come to they when they pray find could place could language they of their to the God faith pleased *12 in faith the And there were men of this same chose.20 who to Perhaps example the best of the sort of men came this Williams, country precisely Roger the founder of that reason is for Island, Christian who has been described as “the truest Rhode Parrington, amongst many sincerely be who desired to Christian.” Thought (1930), p. in at 74. Wil Main Currents American Vol. sepa exponents liams, was of the doctrine of who one of earliest necessary separation in state, ration of and believed that was church danger protect he order to church from the of destruction which thought inevitably by ten evеn the best-in tioned flowed from control unknowing other authorities: “The zeale of Constantine and civil Kingdome, hurt Emperours, did more to Christ Jesus his Crowne and fury persecutions raging bloody most In then the of the Neroes. later, fragrant, pounded spice of the Christians were sweet and like good persecuting Emperours, in some and beaten morters: But those Arrius, persons, advancing professours of some erroneous &c. and (for Truths Truths of Christ there was no small number of lost times) Religion Sword, maintaining their the materiall those ecclipsed, Christianity say I was and the Professors of this meanes Tenent, Persecution, Williams, Bloudy asleep it of fell cause, Conscience, in A betweene Truth for of discussed Conference (London, reprinted Narragansett 1644), Club Publica and Peace Williams, tions, Ill, p. part no of the business To it was Vol. magistrate matters: competence or to interfere civil imprudence is it the most and indiscretion common “[W]hat fight adoption who led power with Rights our Bill of and also for Constitution forbid the sort freedom that very guarantees attempted which New York has governmental activity which Amendment, First men knew that the here. These governmental religion control tried to an end to put destroy not to knew prayer, They was written either. quiet well-justified was to rather that written fears all of nearly arising them felt out of awareness governments past tongues had shackled men’s to speak only religious thoughts make them government wanted speak pray only them to and to government God that wanted them to to. pray It is neither sacrilegious nor antireligious say each separate government country stay should out the business of writing sanctioning official prayers purely leave that religious function to people themselves and to people those the choose look to for religious guidance.21 Life,
affaires of Emperours, Kings conceive that and Rulers of the only qualified earth politic must not all and state abilities to make and execute such may Civill Lawes which concerne the com- rights, peace (which mon safety businesse, worke and load and enough burthen for the ablest Commonweal) shoulders in the but Spirituall also furnished with heavenly such governe abilities to Spirituall and Chiistian Commonweale Id., ...” at 366. See *13 id., also at 136-137. 21There is nothing of course in thе decision reached here is that inconsistent with the fact that school officially children and others are encouraged express to country by love for our reciting historical documents such as the Independence Declaration of which contain Deity references to the singing officially or espoused anthems which composer's include professions Supreme of faith Being, with many the fact that there are manifestations in our life of belief in patriotic God. Such or ceremonial occasions bear no true unquestioned resemblance to the religious exercise that the State New sponsored has York in this instance. Regents’ itsof York’s establishment that New
It is true religious doctrine of officially approved prayer as of one a total establishment not amount State does of all others— exclusion sect to the particular endorsement governmental that, indeed, compared when relatively insignificant prayer seems religion which governmental encroachments may who ago. To those years commonplace were Regents’ to the view becausе subscribe danger to be no general there can so brief and prayer is establishment, governmental freedom in its say the words however, may appropriate author of the First Amendment: Madison, James experiment alarm at the first proper to take “[I]t not . . . does see that on our liberties. Who Christianity, can authority same establish may Religions, exclusion of all other establish any particular Christians, ease sect same all ? author- exclusion of other Sects That same ity pence which can force a citizen to contribute three only property any of his one support for the may him establishment, conform to other force establishment in all cases whatsoever?” judgment of Appeals the Court of York New is reversed and the cause remanded for proceed- further ings not opinion. inconsistent with this
Reversed and remanded. Mr. Justice Frankfurter took no part the decision of this case. part
Mr. Justice White took no in the consideration or decision of this case. against Religious Memorial Remonstrance Assessments, II
Writings of Madison at 185-186.
Mr. Douglas, concurring. Justice customary deciding question
It is a constitutional to in its setting treat it narrowest form. Yet at times the question form gives and content which no abstract give. point could The for treatment decision is whether constitutionally religious the Government can finance system exercise. Our at the federal and state levels is presently honeycombed with financing.1 such Neverthe- think less, undertaking I it is an unconstitutional whatever form it takes. a word as
First, to what this case does not involve. many religion country “There are 'aids’ to in this at all levels government. To mention level, might but a few at the federal one begin by observing very Congress First which wrote the provided chaplains First Amendment in both Houses and in the armed compulsory chapel academies, services. There is at the service religious hospitals services prisons. are held federal The religious proclamations. President issues The Bible is used for the administration of oaths. N. Y. andA. W. P. funds were available A. parochial during depression. money receiving schools Veterans under the 'G. I.’ Bill schools, could attend denominational payments directly by to which government. were During made II, money World War federal was contributed to denominational training schools for the of nurses. The benefits of the National private School Lunch Act are available to students in well as Hospital Survey schools. The and Construction ofAct specifically money non-public hospitals. slogan made available to Treasury ‘In God Department, We Trust’ used and Con gress recently pledge allegiance. added God There is Bible-reading Columbia, schools the District of given Training instruction is in the District’s National School for Boys. Religious organizations exempt from the are federal income postal granted privileges. Up per tax and are to defined limits —15 adjusted gross cent per income of individuals and 5 cent corporations religious organiza net income of —contributions purposes. tions are deductible for federal income tax There no are deductibility gifts bequests limits to the institutions gift made under the federal estate tax laws. This list federal easily expanded, long ‘aids’ could and of course there is a list Fellman, (1959), state.” The Limits of pp. each Freedom 40-41. *15 a permit State Rights not Bill would our
Plainly, prayer adopt to Government the Federal or however, This, it. not utter would anyone who penalize compulsion or element is no case, for there is not that public requiring that regulation in New York’s coercion prayer: following day opened each schools dependence acknowledge our God, we “Almighty blessings upon us, beg Thy we upon Thee, and Country." and our our teachers parents, of the the commencement upon said is prayer The allegiance pledge immediately following day, school in the presence is aloud said flag. prayer The to the teacher, a recitation or selects leads the who either of a to student, however, compelled so. No to do student regulation adopted have respondents part. take nor any teachers school that “Neither provides which non-partici- or authority participation comment on shall any or request posture . or suggest . . nor pation or or worn not used not used dress be or be language be children, excusing is also for worn.” Provision made or from the parent guardian, of a request written prayer saying or the room in prayer regu- explaining implementing is said. A letter parent in the taxpayer to each lation has bеen sent regulation, As I read this child is free school district. recite, or not without fear stand, to or not to recite stand or reprisal or even comment the teacher other school official. only one who is the short,
In need utter the no teacher; complaining teacher is of it. Students if they can stand mute or even leave the desire.2 classroom, required Sunday. chapel Point Cadets are to attend each West requirement Reg., 21, The same c. obtains at the Naval § Academy 9, (1) (Reg., (a)), Academy c. and at the Air Force § Catalogue, 1962-1963,p. except Honey- First Classmen. 110. And see Education, v. Board does McCollum U. S. not decide this case. It involved the use of school facilities for of students. Students education “go either had to attend instruction some place building pursuit other their school . Reports presence studies. . . or absence secular their Id., were to be secular made their teachers.” at 209. brought teaching The influence of the staff was therefore bear on the body, support instilling student of reli- *16 In gious the principles. present case, school facilities are say used to prayer teaching employed the and the staff is to lead pupils is, however, the it. There no at effort attempt and no exposition. Prayers indoctrination at may of course long be so of a such character amount to an at attempt the instruction that was denied the public schools by the McCollum case. But New prayer York’s of a is character that does not involve any element of proselytizing as in the McCollum case. question
The presented by this is case therefore extremely narrow is one. It whether New York oversteps
the bounds when it finances a exercise.
What New York does on the opening of public its is what we schools do when open we court. Our Crier has beginning announced the convening of the Court then added “God save the United States and this Honorable Court.” That is utterance a supplication, we, judges, are join, free to but which we need not recite more than the students need recite prayer. New York What New York does on opening its 3 schools is what each Congress House of at the open- does well, Chaplains Army of the (1958); Jorgensen, United States The Chaplains Army Service of Units, Air 1917-1946, (1961). Vol. I Legislature The New York proсedure. follows the same See, g., e. 1, Assembly Vol. Jour., N. Y. Sess., 1961, p. 8; 184th 1, Vol. Y.N. Jour., Senate Sess., 1961, p. 184th 5. Frederick B. Harris Reverend day’s business.4 of each
ing Braskamp Bernard Reverend Chaplain Senate; is of various chaplains House. Guest of the Chaplain also officiate.5 denominations day’s shall provide session that each calendar Rules of the Senate III, Manual, 2, S. Doc. No. 87th open prayer. Senate See Rule House. See Cong., The same is true of the Rules 1st Sess. Representatives, Doc. No. R. VII, Rule Rules of the House H. Chaplains Cong., of the Senate 459, 86th 2d Sess. The annually. $8,810 75 Stat. See House.receive if would, assume, present case make no difference 5 It I every day or if the ministers of com prayer were said different peti giving prayer. munity rotated, his own For some each profess religion. present tioners in the case no recognizes Pledge Allegiance, prayer, the existence like the the words “one Supreme Being. Since 1954 it has contained of a liberty justice God, indivisible, with for all.” Nation under Report recommending the addition The House U. S. C. 172. § way run “under stated that those words no the words God” recognize “only guidance contrary First Amendment but Rep. Cong., R. 83d our national H. No. God in affairs.” Cong., 2d p. Rep. 1287, 83d Sess. Sen- Sess., 2d 3. And see S. No. *17 pointed sponsored Senate, out Ferguson, who the measure in the ator over the entrance to the words “In God We Trust” are the Cong. He Rec. 6348. added: Senate Chamber. Flag Pledge Allegiance to the which stands that the
“I have felt recognize should the Creator who for the States of America United great Republic. really destinies of this we believe in control of the is lodged anywhere power is no “It is true that under the Constitution attempt religion; religion. to establish a a This is not an to establish anything nothing kind. It relates belief it to do with of that has sincerely God, repose We know that Amer- we our trust. in whom ships by guns, planes, Appro- alone. be defended ica cannot only expenditures if the priations defense will be of value for right. we We we believes that are under whom live God province recognize God’s over the lives of all times should at Cong. great Ibid. And see 100 Rec. Nation.” people and over this seq. House. the debates in the 7757 et for 3, 1865, 517, 518, phrase the authorized 13 Stat. The Act of March placed And see 17 Stat. 427. to be on coins. “In God We Trust” use mandatory requirement for the of that motto on coins The first on prayer In York who is the New the teacher leads takes as public payroll; and the time she seems minuscule legisla- appropriated by with the salaries state compared Congress chaplains prayers the tures conduct legislative Only halls. a fraction bare of the teacher’s given reciting time is this 22-word prayer, short spends about the same amount of time that our Crier announcing opening offering the of our a sessions prayer for this Court. Yet for me is principle same, briefly no matter how is for in said, given person each is praying public instances official on payroll, performing exer- in a governmental cise institution.6 It is said that by May 18, 1908, was made the Act Rep. 35 Stat. 164. See R.H. 1106, Cong., Sess.; seq. Cong. No. 60th 1st et Rec. 3384 The use currency July of the motto all on and coins was directed ofAct 1955, 11, 662, Rep. Cong., Sess.; 69 Stat. 290. H. See R. No. 84th 1st Rep. Cong., S. No. Moreover, 84th 1st Sess. the Joint Reso- July 30,1956, lution was “In our national motto declared to be God reporting Resolution, We Trust.” 70 Stat. 732. In the Joint Judiciary Senate Committee stated: recognition given by adoption “Furthеr official of this was motto Star-Spangled Banner as our national anthem. One stanza of our national anthem is as follows: “ ‘O, thus be it ever when freemen shall stand their
Between lov’d home and the war's desolation! vict’ry peace may Blest with the heav’n rescued land power preserved Praise the that hath made and us a nation! conquer
Then just, we must when our cause And our motto —“In God is our trust.” Star-Spangled triumph And the Banner shall wave O’er the land of the free and the home of the brave.’ anthem, “In view of these words our national it is clear that ‘In strong God we trust’ has a Rep. claim our national motto.” S. Cong., Sess., p. No. 84th 2d taxpayers standing The fact that *18 do not have in the federal courts (Frothing 447) to raise the Mellon, issue ham v. 262 U. S. is of course justification no drawing for line a between is what done New York on the one hand on Congress the other what we do and what prayer. docs in this matter of prayer. this giving the is inherent
element of coercion with which prayer true of the here, is also If that is true it open convened, of those is this Court adults, leave children, would alone let Congress. Few while those or the House courtroom Senate is in a audience Every such being given. prayers are a audience. “captive” sense say to authorize time I cannot
At the same strictly historic religion a establish prayer is to religion A not established words.7 is meaning of those choose to merely letting those who by in the usual sense school teacher leads. say that the do so it religious a exercise government once finances Yet influence into our communities.8 The inserts a divisive prayer given said does not con- New York Court Jewish, Unitarian, form all of the tenets of the petitioners is an groups. Ethical One Culture agnostic. religious people presup- are a whose institutions
“We Clauson, pose Supreme Being.” Zorach v. 343 U. S. Rights play given our Bill of free Under involving analogizes present The case to those Court once, Church, traditional Established Church. We had an Established Anglican. baptisms marriages place All had to take there. ways supported In That church was taxation. these and other Anglican Church was favored over the others. The First Amend any position. put placing preferred in a ment an end to one church any support taxation. It went It еnded church or all churches ceremony, prevented further and secular sanction to Thus, prevents penalties being applied dogma, or rite. civil against recalcitrants or nonconformists. purchased have a with the Some communities Christmas tree money. taxpayers’ tree with the is sometimes decorated words goodwill earth, on to men.” At other times the authorities ‘‘Peace says draw from a different version of the Bible which “Peace on earth goodwill.” Christmas, suppose, I to men of is still a cele merely day bration, put on not the calendar for benefit of merchants.
443 “if a in our But lives.9 active force making religion of our into the affairs is to be worked religious leaven by not groups, done individuals it is to be people, Maryland, v. U. S. McGowan the Government.” By the First opinion). reason of 420, (dissenting “to have no is commanded government Amendment (id., on theology 564), or ritual” those interest at Ibid. The “government must be neutral.” matters a position First Amendment leaves the Government neutrality. but of hostility religion not of The agnostic or nonbe- philosophy that atheist —the way. go philosophy entitled to his own liever —is if will government spiritual, in matters it is that interferes a be divisive force. The First Amendment teaches government religion serves neutral the field better all interests.
My problem today uncomplicated would be but for Education, Everson v. Board U. S. taxpayers’ money pay
allowed used to bus be “the fares parochial pupils of a part general program school which” under the fares of pupils attending public also paid. other schools were The Everson seems in case retrospect to be out of line with the First Amendment. appealing, Its result is as it aid given needy allows to be token, children. Yet public same could funds used to satisfy other needs in parochial children lunches, books, and tuition being schools— obvious examples. Mr. Justice Rutledge stated dissent what I think is durable First Amendment philosophy:
“The reasons underlying policy Amendment’s have vanished with not time diminished force. 9 Religion was once deemed to be a function of the school system. The Ordinance, Northwest which antedated the First Amend ment, provided in III “Religion, Article morality, knowledge being good necessary government happiness and the mankind, schools the means of encourаged.” education shall forever be price adopted when was
Now as religion It is that the church is double. freedom There freedom. within and shall live both by the safeguarded religion, freedom of cannot be *20 its agencies the church or intervention state, and largesse. dependency on its domain state’s great con- Remonstrance, 6, 8. The Par. Madison’s free liberty be maintained is that it dition of interferences, as also from other sustenance, that upon when comes to rest by the state. For it Id,., resting. secular foundation vanishes money payment Par. 8. Public devoted to religious costs, brings quest other, educational or brings struggle against for more. It too the of sect any. Here larger sect for the share or one most, alone will there another. numbers benefit That precisely history is of societies which have Id., religion had an groups. established and dissident 8,11. very Par. It is thing Jefferson and Madison experienced sought guard whether against, its blunt or its more screened forms. Ibid. The end of destroy such strife cannot be other than to liberty. cherished dominating group The will achieve the benefit; dominant or all will embroil Id., Id., state in their dissensions. Par. 11.” pр. 53-54. York prayer
What New does with this is a break with I join that tradition. Court reversing .therefore judgment below. Stewart,
Mr. dissenting. Justice A local board New York provided school has pupils may those who wish to do so in a join prayer brief beginning of each school day, at the acknowledging their dependence upon asking God His blessing upon them and parents, country. their teachers, their their today in permitting Court decides that this brief non- prayer denominational board the school has violated the Constitution I United States. think this decision wrong. The Court it, does not nor could hold, New York has interfered with the free of anybody’s exercise reli- gion. For the state courts made have clear that those object who to reciting must be entirely free any compulsion so, including to do any “embarrassments and pressures.” Virginia Cf. West State Board Educa- tion Barnette, v. says U. S. 624. But the Court in permitting say school simple prayer, children to the New York authorities have “an established religion.”
With all respect, I think the has misapplied Court *21 great constitutional principle. I cannot see how an “official religion” letting is established by those who want say a prayer say it. contrary, On the I think that to deny the of wish these join reciting school children to in is deny opportunity them the of in sharing the spiritual heritage of our Nation.
The Court’s historical quarrels review of the over the Book of Common in Prayer England light throws no me on the issue before in England us this case. had then an has now established church. Equally unenlight- ening, think, I is history the of early establishment and later of an rejection in church own States. For we deal here not with the establishment of state church, which would, course, be constitutionally imper- missible, but with whether school children who want to begin day their by joining in prayer prohibited must be from doing so. I think that Moreover, the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided the uncritical invocation of meta- phors like the “wall of separation,” phrase now'here to
446 relevant What
be found Constitution. church history established is not the issue here century eighteenth England century sixteenth of our religious traditions America, history of the but institutions practices reflected countless people, government. of our officials we Court day's of this Session opening of each At protection our officials invokes stand, while one of said, Mаrshall our has days of John Crier God. Since Honorable Court.” States and this “God save the United open Representatives House of Both the and the Senate Presidents, Each of our daily prayer.2 their Sessions has Washington Kennedy, to John F. George help of God.3 assuming protection his Office asked the 1, Warren, Supreme History, Vol. Court in United States See p. 469. III, Manual, Cong,, Rule S. Doc. 1st Sess. See Senate No. 87th Representatives, H. No. VII, Rule Rules R. Doo. See House Cong., 2d 86th Soss. example: For Washington April 30, 1789, George said: On President peculiarly improper . . it would be to omit this first my supplications Almighty Being to that who official act fervent presides nations, universe, rules over the who the councils every defect, providential supply and whose aids can human may happiness His the liberties benediction consecrate to people United States a instituted Government may every purposes, themselves for these essential enable employed with suc- instrument in its administration execute tendering charge. In this hom- *22 cess functions allotted to his every private age good, to the Great Author and I assure myself my own, expresses your thаt it sentiments not less than my large less nor those of fellow-citizens at than either. No acknowledge people the can be bound to and adore Invisible men Hand which conducts the affairs of more than those . . United States. . imparted you my they
“Having thus to sentiments as have brings together, been awakened which I occasion us shall my present leave; resorting but take not without once more to benign supplication Parent of Human Race in humble that, pleased people He since has been favor the American deliberating opportunities perfect tranquillity, with for and dispositions unparalleled unanimity deciding with form on a government security for the their and union the advance- may happiness, blessing equally ment of so their His divine conspicuous enlarged views, temperate consultations, and the wise measures on which of this the success Government depend.” must
On March President John Adams said: supreme may Being all, “And who is over the Patron of Order, Justice, ages the Fountain of and the Protector in all liberty, blessing world virtuous continue His give possible nation and its Government and it all success and providence.” duration consistent with ends His 4, 1805, On March President said: Thomas Jefferson too, Being “. . need, .1 shall of that favor whose hands are, old, fathers, we led our who as Israel of native their country planted flowing land in a and them with all the neces- life; infancy saries and comforts of who has covered with our His providence years riper power, and with His wisdom and you join goodness supplications whose I ask me enlighten your so servants, guide that He will the minds of their councils, prosper they their measures that whatsoever do your good, you peace, shall result in and shall secure to friendship, approbation of nations.” all 4, 1809, On March President James Madison said: “But source which my I look . . . is . . . fellow- citizens, representing the counsels of those them in the departments other associated in the care of the national interests. my every difficulty will In these confidence under placed, be best encouraged next to have all been we to feel in the guardianship guidance Almighty Being power of that whose regulates destiny nations, blessings whose have been so conspicuously dispensed rising Republic, to this and to whom gratitude past, we are bound to address our devout for the supplications hopes well as our fervent and best for the future.” p. 3 continued on [Footnote *23 1865, Lincoln 4, President said: On March Abraham fervently pray, this Fondly hope, do we do we "... Yet, wills may speedily pass away. mighty scourge war if God two piled bondsman’s until all the continue wealth years sunk, and fifty unrequited be hundred toil shall and paid every drop of drawn with the lash shall be until blood years sword, said thousand drawn with the as was three another judgments Lord are true ago, so still it must be said ‘the righteous altogether.’ and charity none, all, with firmness
“With malice toward to right gives right, to us strive on as God us see the let wounds, in, up we nation’s finish work are bind for his widow care for him who shall have borne battle and just may orphan, his achieve cherish a do all and lasting peace among ourselves and with all nations.” 4, 1885, March President Grover Cleveland said: On humbly alone, us trust to effort "... And let not human but power Almighty God, who acknowledging goodness presides destiny nations, has times over the and who at all country’s history, been in our let us invoke His aid revealed blessing upon His our labors.” 1917, 5, March Woodrow Wilson said: On President given may prudence pray "... God I the wisdom and the my duty great people.” spirit this to do true 1933, 4, On March President Franklin D. Roosevelt said: blessing humbly “In dedication we ask the of Nation May protect every May He God. He each us. one of days guide me in the come.” January 1957, Dwight D.
On President Eisenhower said: else, nation, seek,
“Before all we our common labor as a blessings Almighty hopes in God. And the hearts deepest prayers people.” fashion the our whole January 20, Kennedy On President John said: F. very yet
“The world is now. . . . And same different revolutionary fought beliefs for which at our forebears are still globe rights issue around belief that the of man come —the *24 today says gov- The Court the state federal power prescribe ernments are without constitutional particular any by any group form words to be recited touching the American people subject religion.4 on Banner,” One of the stanzas of “The Star-Spangled made our National Anthem by Congress 1931,5 Act contains these verses: victory
“Blest with and peace, may the heav’n rescued land
Praise the Pow’r preserved that hath made and
us a nation! Then conquer must, we when our it is just, cause ” And this be our motto ‘In God is our Trust.’ In Congress 1954 a Pledge added phrase to the of Alle giance to the Flag so that it now contains the words “one God, Nation under indivisible, liberty with justice 6 for all.” In Congress 1952 legislation enacted cаlling year the President proclaim each a Day National god of Prayer.7 Since 1865 the words “in we trust” have impressed been on our coins.8 generosity
not from the of the state but from the hand God. good only
“With a conscience our reward, history sure with judge final deeds, go of our let love, us forth to lead the land we asking blessing His help, knowing and His but on here earth truly God’s work must be our own.” 4 Douglas My says only question brother before us is government constitutionally whether “can finance a exer chaplains Congress cise.” The paid public money. are military chaplains. So are prison chaplains. So are state and federal 5 S. U. C. §170. 6 36 C. U. S. §172. 7 36 S. C. U. § 427; 164; 518; 8 13 Stat. 17 Stat. 35 Stat. Stat. 290. The provisions current are embodied in U. C.S. 324a. §§ there listed, but examples could be similar Countless up was all summed It the obvious.9 no need to belabor “We single in a sentence: ago years ten just this Court presuppose institutions people whose are 306, 313. Clauson, 343 S.U. Being.” Zorach v. Supreme Congress, Court, or the that this I do not believe I men- practices have actions and has President religion” an “official violation tioned established York of New I not the State And do believe Constitution. has has done been so in this case. each done What has deeply entrenched recognize and to follow *25 Nation— traditions our spiritual highly cherished from who almost down to us those traditions which come “firm on the years ago avowed their Reliance two hundred they proclaimed of divine Providence” when Protection independence of this brave new world.10 freedom I dissent. ipse unsupported dixit I am at a loss to understand the Court’s upon expressions faith in reliance
that these official unquestioned reli Being Supreme “bear no true resemblance to sponsored in gious New York has this the State of exercise ante, hardly think that p. n. 21. I can instance.” See imposes say a lesser the First Amendment Court means to upon than does the Fourteenth the Federal Government restriction suggesting is the Court the States. Or Amendment join Congressmen permits judges and Presidents to Constitution doing so? prayer, prohibits but school children Independence “And ends with sentence: The Declaration of pro Declaration, a firm reliance on the support of this mutually pledge our Providence, other we each tection of divine Lives, Fortunes and our sacred Honor.”