10 N.Y.2d 174 | NY | 1961
Lead Opinion
In 1951 and again in 1955 the Board of Regents, governing body of our State public school system, recommended to all local school boards that “ at the commencement of each school day the act of allegiance to the Flag might well be joined with this act of reverence to God: ‘ Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country ’ ’ ’. In 1958 the respondents, who are the board members of a public school district in Nassau County, conformed to the Regents’ recommendation and gave instructions to the teaching staff to adopt the practice in the district’s schools. Petitioners, taxpayers in the district and parents of children attending the schools and all (except one “ non-believer ”) being members of various religious bodies, brought this proceeding for an order directing the board to discontinue the practice. They assert that it is unlawful because of the prohibitions of the First Amendment (“no law respecting an establishment of religion, or prohibiting the free exercise thereof ”) and the command of section 3 of article I of our State Constitution (“ The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind”).
The order here appealed from contains adequate provisions to insure that no pupil need take part in or be present during the act of reverence, so any question of “ compulsion ” qv
What remains of appellants ’ argument is this: that the saying of the “ Regents prayer ” as a daily school exercise is a form of State-sponsored religious education and is accordingly an unconstitutional “establishment of religion”. If the utterance of these reverential words was “ religious education ”, then providing such education would be so far beyond the powers of a public school board as to be wholly arbitrary and unlawful, so that the courts would need no constitutional warrant for forbidding it. But it is not “religious education” nor is it the practice of or establishment of religion in any reasonable meaning of those phrases. Saying this simple prayer may be, according to the broadest possible dictionary definition, an act of “ religion ”, but when the Founding Fathers prohibited an ‘1 establishment of religion ’ ’ they were referring to official adoption of, or favor to, one or more sects. They could not have meant to prohibit mere professions of belief in God for, if that were so, they themselves in many ways were violating their rule when and after they adopted it. Not only is this prayer not a violation of the First Amendment (no decision of this or of the United States Supreme Court says or suggests that it is) but a holding that it is such a violation would be in defiance of all American history, and such a holding would destroy a part of the essential foundation of the American governmental structure.
The “ Regents prayer ” is an acknowledgment of our dependence upon Almighty God and a petition for the bestowal of His blessings. It includes an acknowledgment of the existence of a Supreme Being just as does the Declaration of Independence and the Constitutions of each of the 50 States of the Union, including our own. In construing even a Constitution some attention must be paid to the obvious intent of those who drafted it and adopted it (Matter of Carey v. Morton, 297 N. Y. 361). That the First Amendnient was ever intended to forbid as an “ establishment of religion ’ ’ a simple declaration of belief in God is so contrary to history as to be impossible of acceptance. No historical fact is so easy to prove by literally countless illustrations as the fact that belief and trust in a Supreme Being was from the beginning and has been continu
The “ universally accepted tradition ” referred to by Justice Beldock has been maintained without break from the days of the Founding Fathers, all of whom believed in the existence of God (see Cousins, In God We Trust), to the day of the inauguration of President Kennedy. It is an indisputable and historically provable fact that belief and trust in a Creator has always been regarded as an integral and inseparable part of the fabric of our fundamental institutions. It is not a matter of majority power or minority protection. Belief in a Supreme Being is as essential and permanent a feature of the American governmental system as is freedom of worship, equality under the law and due process of law. Like them it is an American absolute, an application of the natural law beliefs on which the
The motives and purposes of the Regents and of the local board are noble. The success of the practice is problematical. But there is no problem of constitutionality.
The order should be affirmed, without costs.
Concurrence Opinion
The thoughtful and thorough opinion written at Special Term and its review of the relevant history and the authorities, culminating in its order of March 17, 1961, renders extended discussion unnecessary.
We are not here concerned with the statements of the Board of Regents or of the local school board as to their motives or purposes in the eventual promulgation of the challenged recitation.
The narrow question presented is: Do the Federal and State Constitutions prohibit the recitation by children in our public schools of the 22 words acknowledging dependence upon Almighty God, and invoking His blessing upon them, their parents and teachers, and upon our country? To say that they do seems to me to stretch the so-called separation of church and State doctrine beyond reason.
History and common experience teach us that the perception of a Supreme Being, commonly called God, is experienced in the lives of most human beings. Some, it is true, escape it, or think they do for a time. In any event, that perception is manifest, independent of any particular religion or church, and has become the foundation of virtually every recognized religious faith — indeed, the common denominator. One may earnestly believe in God, without being attached to any particular religion or church. Hence a rule permitting public school children, willing to do so, to acknowledge their dependence upon Him, and to invoke His blessings, can hardly be called a “ law respecting an establishment of religion ” or “ prohibiting the free exercise thereof ’ ’ in transgression of the First Amendment, which in nowise prohibits the recognition of God, or laws respecting such recognition.
The challenged recitation follows the pledge of allegiance, which itself refers to God. School children are permitted to sing “ America ”, the fourth stanza of which is indeed a prayer, invoicing the protection of “God”, “Author of Liberty”.
As Mr. Justice Douglas said, in the Zorach case (supra, at p. 313), in holding that the New York City released time program does not violate the First Amendment, ‘ ‘ We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs or creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” Here no partiality is shown, nor are classrooms being turned over to religious instructors as in McCollum v. Board of Educ. (333 U. S. 203). Any effort of a particular group to promote its own beliefs, doctrines, tenets and dogma must be carried on outside the public school, and any law to the contrary would violate the First Amendment. (McCollum v. Board of Educ., supra.)
As we see it, then, the challenged recitation was rightly upheld. It is not compulsory, is clearly nonsectarian in language, and neither directly nor indirectly even suggests belief in any form of organized or established religion. It permits each child to express gratitude to God and to invoke His blessing, to be steadfast in the faith of his acceptance if he has one; it compels no one, directly or indirectly, to do anything, if that be his or his parents’ wish. All remain free, and thus we do not show preference as between “ those who believe in no religion ” and “ those who do believe ” (Zorach v. Clauson, supra, p. 314).
The orders appealed from should be affirmed, without costs.
Burke, J. (concurring). I concur in the opinions of Chief Judge Desmond and Judge Froessel. The dissenting opinion
This interpretation rests on a misunderstanding. There is no language in the amendment which gives the slightest basis for the interpolation of a Marxist concept that mandates a prescribed ethic. According to the opinion, the separation of church and State which was intended to encourage religious interests among our people would become the constitutional basis for the compulsory exclusion of any religious element and the consequent promotion and advancement of atheism. It is not mere neutrality to prevent voluntary prayer to a Creator; it is an interference by the courts, contrary to the plain language of the Constitution, on the side of those who oppose religion.
Dissenting Opinion
The question posed on this appeal is whether the recital of a school-sponsored prayer may be required as a daily procedure in a public school. This question comes about as a result of a recommendation duly adopted at a special meeting of the Board of Education of Union Free School District Number Nine, New Hyde Park, New York, held July 8,1958, requiring that “ the regents prayer be said daily in our schools ”, pursuant to which the board gave a “ direction to the District Principal that this be instituted as a daily procedure to follow the salute to the flag ” (Minutes, Board of Educ., Union Free School, Dist. No. 9, of meeting July 8, 1958).
The Regents prayer is worded as follows: “ Almighty Glod, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” It derives from the “ Regents Statement on Moral and Spiritual Training in the Schools ”, issued by the New York State Board of Regents, as duly adopted at a meeting held on November 30, 1951. This statement was reaffirmed and supplemented. by
The Regents recommended that school programs be instituted, stressing the moral and spiritual heritage of America. It was in response to this recommendation that the respondent board promulgated the above order.
In the schools in the respondents’ district, it is the practice to say the prayer immediately after the salute to the flag, as a required daily procedure. It is led by the teacher or by a student selected by the teacher, with other students joining therein. While it does not appear whether any students leave the classroom during such recital, no penalty attaches for non-participation, since the board announced that, as a matter of policy, no child was to be required or encouraged to join in said prayer against his or her wishes.
The petitioners with one exception — a nonbeliever — are all members of various religious faiths and, as taxpayers and parents of children attending public schools within the district, have challenged the saying* of the prayer and have demanded its discontinuance on the ground that it amounts to an abridgement of religious freedom guaranteed by the First and Fourteenth Amendments to the Federal Constitution and section 3 of article I and section 4 of article XI of the New York State Constitution which, in essence, is to say that it constitutes a breach in Jefferson’s metaphorical wall “ separating church and state ”.
No one doubts for a moment that we are a religious people. It can be safely said that under no other government—past or present—have the people enjoyed such an untrammeled freedom to worship as they please and to indulge such freedom in more different ways and according to more diverse tenets
The natural consequence of these fundamental principles is not only to allow but to guarantee to all citizens an absolute freedom in the exercise of religious belief or no belief. By the same token, our State is free to function without interference by or dictation from an organized church. This mutual forbearance in spirit and in practice has eliminated divisiveness in a most sensitive area, created mutual respect for both church and State and has unified our people in a way that no other force could do.
The development of the precise meaning of the establishment and freedom clauses of the First Amendment has had a long and interesting history which needs no narration here. Very recently the United States Supreme Court has dealt with it in a series of historical decisions which, though varying in details, make it clear that the establishment and freedom clauses of the First Amendment constitute a complete and unequivocal separation of church and State, a wall which £ £ must be kept high and impregnable ”, for in modern times it means at least this: ££ Neither a state nor the Federal G-overnment can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against bis will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church
The New York released time program was tested and approved in Zorach v. Clauson (343 U. S. 306). This permitted release of public school students during class hours for religious instruction off the school grounds, provided that written parental approval was first obtained. All costs were paid by the interested religious organizations. Some have read Zorach as a retreat from McCollum, but a majority of the United States Supreme Court did not think so. In sustaining the program,
It is also interesting to note that in McGowan v. Maryland (366 U. S. 420) Mr. Justice Douglas took occasion to sharpen what he had previously said in Zorach about our being a “ religious people ” by writing:
“ But those who fashioned the Constitution decided that if and when God is to be served, His service will not be motivated by coercive measures of government. * * * [The First Amendment] means, as I understand it, that if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. * * * The idea, as I understand it, was to limit the power of government to act in religious matters (Board of Education v. Barnette, supra; McCollum v. Board of Education, 333 U. S. 203), not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics.
“ The First Amendment commands government to have no interest in theology or ritual; * * * On matters of this kind government must be neutral.” (McGowan v. Maryland, 366 U. S. 420, 563-564, supra.)
Very recently McCollum (supra) was employed to strike down Maryland’s “ belief in God ” test for public office as an unconstitutional invasion of “ freedom of belief and religion” and,
Running through the fabric of these definitive decisions, like the pattern of a tree of life in an intricate tapestry, is a clearly defined line of demarcation between church and State, which may not be overstepped in the slightest degree in favor of either the church or the State. In such light, a board of education may not require the saying of the Regents prayer as a daily school procedure. It is a form of State-sponsored religious education; in fact, according to the Regents, its purpose is “ teaching our children, as set forth in the Declaration of Independence, that Almighty God is their Creator ” (1951 Statement of Belief) and “ will give to the student an understanding and appreciation of his role as an individual endowed by his Creator * * * and of reverence for Almighty God.” It would thus “fulfill its [the school’s] high function of supplementing the training of the home” (Fundamental Beliefs, Regents Recommendations, adopted March 25, 1955). This requirement falls squarely within the categories of disability accounting for the decisions in Everson and McCollum (supra): use of public school classrooms during regular school hours, limitation of participation to those children whose parents consent and, in addition, being led by a teacher or by a person designated by the teacher. Under such announced purpose and method of performance, it cannot be less than instruction contrary to the establishment and freedom clauses, nor can the requirement be excused on the theory that the saying of the prayer—although conducted in the presence of the student body in the assembly hall of the classroom — is nonetheless a voluntary act, since no child is “ required or encouraged to join in said prayer against his or her wishes ” (Answering Affidavit), or on the theory that during the saying the child may remain silent, leave
The mere circumstance that the children of these petitioners may constitute a minority is no justification for rejecting their petition. The guarantees of the Bill of Bights, of which the First Amendment is the very cornerstone, were designed to protect minorities, which include diverse religious sects and atheists. While majority rule is an accepted incident of the political aspects of the democratic process, nothing in the Bill of Bights permits imposing the will of a majority — even in the slightest degree—upon an objecting minority, contrary to its protective cloak (Torcaso v. Watkins, supra; Board of Educ. v. Barnette, 319 U. S. 624). The very fact that the school board is charged with the duty of educating the young who are compelled to attend public school, except in certain instances not presently pertinent (Education Law , § 3212), is reason enough to observe scrupulously the establishment and freedom clauses here invoked. What was said in McCollum is appropriate here: “We renew our conviction that ‘ we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.’ Everson v. Board of Education, 330 U. S. at 59. If nowhere else, in the relation between Church and State, ‘ good fences make good neighbors.’” (McCollum, supra, p. 232.)
The sponsors of the Begents prayer claim that it is nonsectarian in nature, a simple statement acknowledging the existence of and our dependence upon a Supreme Being; that such reference is of much the same character as the reference to God in
The order appealed from should be reversed and the prayer of the petitioners should be granted, directing the Board of Education of Union Free School District Number Nine, New Hyde Park, to discontinue the saying of the Regents prayer in the schools within its district.
Judge Foster concurs with Chief Judge Desmond ; Judge Froessel concurs in an opinion in which Judge Van Voorhis concurs; Judge Burke concurs in a separate opinion; Judge Dye dissents and votes to reverse in an opinion in which Judge Fuld concurs.
Order affirmed.