Engel v. Vitale
370 US 421 (Decided June 25, 1962)
Bill Long
One of the persistent problems in Establishment Clause jurisprudence is to decide what it means for Congress, or the States through the Fourteenth Amendment, to "establish" a religion. A Justice's ultimate conclusions regarding the constitutionality of a particular practice are often determined by his or her prior commitment to the breadth of that word.
If he or she takes it narrowly, meaning that the word only protects against a 'state church,' such as the Church of England, then many religious practices supported or even sponsored by the government will be approved. If, however, one agrees with Justice Frankfurter in the McCollum (1948) case that "We are all agreed that the First and the Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church,'" then a lot more governmentally-supported practices will be suspect. This debate is evident in this 1962 case declaring unconstitutional the New Hyde Park (NY) public school practice of commencing each school day with the following prayer, to be said with a teacher present:
"Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."
Majority Opinion
Speaking for an 8-1 majority, Justice Hugo Black opined that this daily practice must be struck down as a violation of the Establishment Clause because the prayer was composed by government officials as a part of a governmental program to further religious beliefs. "It is not part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."
This approach then led Justice Black on a long historical examination of the Episcopal Book of Common Prayer and its fortunes in England in the 16th and 17th centuries. His point was that such an attempt to establish a uniform book of prayer led not only to social discord but that it was one of the major reasons why pilgrims and others fled to this land. Religious uniformity and government compulsion of prayer, therefore, are incompatible with the American spirit. In addition, Justice Black wanted to stress that an element of compulsion is here, too, even though such a showing isn't necessary for an Establishment Clause violation. "When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." Such coercion weakens both church and state.
What is striking in the majority opinion, in my mind, is not the vigor or certitude of the language, but the lack of any framework or "test" to try to determine what constitutes a violation of the Establishment Clause. The first attempts at devising such a test would arise in the Schempp case in 1963.
Justice Douglas's Concurrence
The Justice Douglas who wrote in 1962 on religion issues bears little relation to the Justice who authored the majority opinion in Zorach (1952) permitting release-time religious programs. By 1962 he has become unalterably opposed to the variety of schemes by which financing of religion is subtly or explicitly interwoven into the fabric of public life. In his words, "Our system at the federal and state levels is presently honeycombed with such financing." Thus, he defines the issue in the case as an extremely narrow one. "It is whether new York oversteps the bounds when it finances a religous exercise."
One might be inclined to ask, however, 'In what way is New York financing an effort in which a 22-word prayer is recited 30 seconds?' The "absolutist" Douglas then comes forth: "Yet for me the principle is the same, no matter how briefly the prayer is said, for in each of the instances given the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution." Such government "financing" of religon inserts a divisive influence into American life. As with Justice Black, he closes his opinion with a citation from Madison's 1785 Remonstrance to the effect that "The great condition of religious liberty is that it be mantined free from sustenance, as also from other interferences, by the state." The end result of his philosophy here expressed would probably be to remove all religious insignia and indicia, if governmentally sponsored or supported, from the public spaces of American life.
Dissent and Conclusion
Justice Potter Stewart, a 1958 Eisenhower appointment to the Court, dissented primarily on the ground cited above: that a prayer such as was recited is not an "official religion," and that it simply allows school children to share in the spiritual heritage of our Nation. He then laboriously cites prayers given by US Presidents on official occasions, from Washington to Kennedy, and recites a litany of other ways, from the Star-Spangled Banner to the Pledge of Allegiance, in which God is officially mentioned in our public life.
Though this case was a relatively easy one for the Court, the issues dividing the majority from Justice Stewart will come back in one form or another in many cases after 1962.
Copyright © 2004-2007 William R. Long |