by David Barton
New York had taken great pains to provide that participation in these prayers be completely voluntary. Furthermore, in an attempt to be as inoffensive as possible, the prayer’s wording was simply a nonsectarian acknowledgment of God. In fact, that acknowledgment was so bland that a later court described it “as a ‘to-whom-it-may-concern’ prayer.”24
Since the prayer was both voluntary and nondenominational, it should have been upheld; yet the Court explained why it must be struck down:
Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment…. [It] ignores the essential nature of the program’s constitutional defects…. [P]rayer in its public school system breaches the constitutional wall of separation between Church and State.25
The real issue in this case was not the state-mandated coercion argument so often recited by today’s reviewers; rather, as the Court acknowledged, it was simply the presence of “prayer in the public school system.”
Additional proof that this ruling was a direct attack on all types of prayers is found in the manner in which the Engel case has been invoked by subsequent courts. If the impact of this ruling had been only to stop state-approved, allegedly state-mandated, coercive prayers, then this case would have been cited in no subsequent ruling since there have been no further cases involving such circumstances. Yet a perusal of court rulings over recent decades reveals that Engel has been cited in virtually every prayer case,26 regardless of its dissimilarity to the New York case. Very simply, the Engel decision was an attack on any type of prayers in school.
In striking down this prayer, the Court explained that:
[A] union of government and religion tends to destroy government and to degrade religion.27
While this might have been the Court’s belief, it certainly was not representative of the beliefs of those who established this nation. Notice:
[T]rue religion affords to government its surest support.28 GEORGE WASHINGTON
[R]eligion and virtue are the only foundations … of republicanism and of all free governments.29 JOHN ADAMS
[G]overnment … is a firm compact sanctified from violation by all the ties of personal honor, morality, and religion.30 FISHER AMES, AUTHOR OF THE HOUSE LANGUAGE OF THE FIRST AMENDMENT
[T]he happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality.31 JAMES BOWDOIN, GOVERNOR OF MASSACHUSETTS
Religion and morality … [are] necessary to good government, good order, and good laws.32 WILLIAM PATERSON, SIGNER OF THE CONSTITUTION; U. S. SUPREME COURT JUSTICE
[The] liberty to worship our Creator in the way we think most agreeable to His will [is] a liberty deemed in other countries incompatible with good government and yet proved by our experience to be its best support.33 THOMAS JEFFERSON
[T]he moral principles and precepts contained in the Scriptures ought to form the basis of all our civil constitutions and laws.34 NOAH WEBSTER
The sanctions of religion compose the foundations of good government.35 DEWITT CLINTON, INTRODUCED THE TWELFTH AMENDMENT; GOVERNOR OF NEW YORK; U. S. SENATOR
I do not believe that the Constitution was the offspring of inspiration, but I am as perfectly satisfied that the Union of the States in its form and adoption is as much the work of a Divine Providence as any of the miracles recorded in the Old and New Testament.36 BENJAMIN RUSH, SIGNER OF THE DECLARATION
God grant that in America true religion and civil liberty may be inseparable and that the unjust attempts to destroy the one may in the issue, tend to the support and establishment of both.37 JOHN WITHERSPOON, SIGNER OF THE DECLARATION
However, the Court was not particularly interested in the Founders’ views on this subject; in fact, it openly acknowledged its contempt for America’s heritage when it remarked:
[T]hat [New York] prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago.38
The Court also claimed that to approve any specific wording made the prayer constitutionally infirm – an argument effectively dismantled by Justice Potter Stewart in his dissent:
The Court today says that the State and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion. One of the stanzas of “The Star-Spangled Banner,” made our National Anthem by Act of Congress in 1931, contains these verses:
“Blest with victory and peace, may the heav’n rescued land
Praise the power that hath made and preserved us a nation!
Then conquer we must, when our cause it is just,
And this be our motto ‘In God is our Trust.’ ”
In 1954, Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words “one Nation under God, indivisible, with liberty and justice for all”…. Since 1865 the words “In God We Trust” have been impressed on our coins. Countless similar examples could be listed, but there is no need to belabor the obvious…. I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an “official religion” in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation – traditions which come down to us from those who almost two hundred years ago avowed their “firm reliance on the Protection of Divine Providence.”39
Aside from the fact that the Court had affronted the traditional interpretation of the First Amendment by striking down a voluntary prayer, in a comment the following year, the Court itself noted another irregularity of its decision:
Finally, in Engel v. Vitale, only last year, these principles were so universally recognized that the Court, without the citation of a single case … reaffirmed them.40 (emphasis added)
The Court had failed to cite even a single precedent to justify its prohibition of New York’s voluntary prayers – a significant departure from a bedrock rule of jurisprudence. Why did it fail to cite precedent cases? There were none which would support its decision. For 170 years following the ratification of the Constitution and Bill of Rights, no Court had ever struck down any prayer, in any form, in any location.
While the Court invoked no judicial precedent to sustain its decision, it did employ some strategic psychological rhetoric. Recall the Court’s comment that:
… these principles were so universally recognized …41 (emphasis added)
Lacking precedent, the Court simply alleged a widespread public support; that is, since “everybody” knew school prayer was wrong, the Court needed cite no precedent. However, the so-called “universally recognized” principles were actually foreign to most, and many observers commented on the Court’s new direction. For example, the World Book Encyclopedia 1963 Yearbook observed:
The significance of the [1962] decision regarding this [school] prayer was enormous, for the whole thorny problem of religion in public education was thus inevitably raised.42 (emphasis added)
According to this source, prior to the Engel case, the issue of separating prayer from education had not been “raised.” Legal authorities also noted:
The Court has broken new ground in a number of fields…. Few Supreme Court decisions of recent years have created greater furor than Engel v. Vitale.43 (emphasis added)
Actually, so few agreed with the Court’s claims of “universally recognized” principles that the U. S. Congress even convened extensive hearings to deal with the widespread public outrage.44 Nonetheless, in an attempt to purvey credibility, the Court invoked James Madison’s statement that:
[A]ttempts to enforce … acts obnoxious to so grea
t a proportion of citizens tend to enervate [weaken] the laws in general and to slacken the bands of society.45
The Court equated school prayer to “acts obnoxious to so great a proportion of citizens.” This, too, was a patent misrepresentation, evidenced by the fact that so many States permitted school prayers.46 In fact, the next year the Court weakened its own assertion when it acknowledged that:
[O]nly last year [1962] an official survey of the country indicated that … less than 3% profess no religion whatever.47
With such a strong religious adherence in this country, there simply was no factual basis for the Court’s assertion that the generic acknowledgment of God embodied in the Engel prayer was something obnoxious to the mass of citizens.
In concluding its decision, the Engel Court claimed that to allow this voluntary prayer was to establish an “official state religion” – a conclusion strongly objected to by Justice Stewart:
With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an “official religion” is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation…. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so.48
The Engel decision – the second occasion in which the Supreme Court had struck down a voluntary student religious activity – was based on a series of poorly grounded arguments punctuated by many erroneous and ill-advised statements. However, perhaps the most serious and longlasting effect of that case was the Court’s transformation of the First Amendment prohibition against the establishment of a national church into the prohibition of a voluntary religious activity by students.
School District of Abington Township v. Schempp, 1963
This case involved yet another voluntary activity by students: the use of the Scriptures. At issue was a Pennsylvania policy which stated:
Each school … shall be opened by the reading, without comment, of a chapter in the Holy Bible…. Participation in the opening exercises … is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses.49
The Court explained:
There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises.50
Like the New York prayer, this seemed to be a relatively innocuous activity. It was voluntary; it was student-led; no additional instruction or comments were permitted. Yet today’s civil libertarians portray this as a coercion case – so much so, they claim, that Edward Schempp thought himself forced to file suit to relieve his children from the coercion. However, the facts of the case disprove this assertion:
Roger and Donna [two of the Schempp children] testified that they had never protested to their teachers or other persons of authority in the school system concerning the practices of which they now complain [in this lawsuit]. In fact, on occasion, Donna herself had volunteered to read the Bible.51 (emphasis added)
Furthermore, so non-coercive was the policy that while other children were reading the Bible, one of the Schempp children had been permitted to read the Koran.52 The facts in the case clearly establish that there was no coercion. (However, when this case finally reached the Supreme Court, these facts, presented in the District Court, were ignored.)
Another argument raised then (and still raised today) is that the school setting is no place for religious activities; if such activities are to occur, it should be at home – or in a private school. Justice Stewart, in his dissent, pointed out the constitutional fallacy of such arguments:
It might be argued here that parents who wanted their children to be exposed to religious influences in school could … send their children to private or parochial schools. But the consideration which renders this contention too facile [simplistic] to be determinative [a factor] has already been recognized by the Court: “Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.” Murdock v. Pennsylvania, 319 U. S. 105, 111. It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that if religious exercises are held to an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism.53
Furthermore, the Founders’ opinion of the Bible, and of its use in schools, was clear:
The great enemy of the salvation of man, in my opinion, never invented a more effectual means of extirpating [extinguishing] Christianity from the world than by persuading mankind that it was improper to read the Bible at schools.54 [T]he Bible, when not read in schools, is seldom read in any subsequent period of life…. [It] should be read in our schools in preference to all other books from its containing the greatest portion of that kind of knowledge which is calculated to produce private and public temporal happiness.55 BENJAMIN RUSH, SIGNER OF THE DECLARATION
[Why] should not the Bible regain the place it once held as a school book? Its morals are pure, its examples captivating and noble. The reverence for the Sacred Book that is thus early impressed lasts long; and probably if not impressed in infancy, never takes firm hold of the mind.56 FISHER AMES, AUTHOR OF THE HOUSE LANGUAGE FOR THE FIRST AMENDMENT
Suppose a nation in some distant region should take the Bible for their only law book and every member should regulate his conduct by the precepts there exhibited…. What a Eutopia, what a Paradise would this region be.57 I have examined all [religions] … and the result is that the Bible is the best Book in the world. It contains more of my little philosophy than all the libraries I have seen.58 JOHN ADAMS
The Bible itself [is] the common inheritance not merely of Christendom but of the world.59 JOSEPH STORY, U. S. SUPREME COURT JUSTICE; FATHER OF AMERICAN JURISPRUDENCE
To a man of liberal education, the study of history is not only useful, and important but altogether indispensable; and with regard to the history contained in the Bible … “it is not so much praiseworthy to be acquainted with as it is shameful to be ignorant of it.”60 JOHN QUINCY ADAMS
The reflection and experience of many years have led me to consider the holy writings not only as the most authentic and instructive in themselves, but as the clue to all other history. They tell us what man is, and they alone tell us why he is what he is: a contradictory creature that seeing and approving of what is good, pursues and performs what is evil. All of private and of public life is there displayed…. From the same pure fountain of wisdom we learn that vice destroys freedom; that arbitrary power is founded on public immorality.61 GOUVERNEUR MORRIS, PENMAN AND SIGNER OF THE CONSTITUTION
[The Bible] is a book worth more than all the other books that were ever printed.62 PATRICK HENRY
[T]o the free and universal reading of the Bible in that age, men were much indebted for right views of civil liberty. The Bible is … a book which teaches man his own individual responsibility, his own dignity, and his equality with his fellow man.63 DANIEL WEBSTER
The Bible is
the best of all books, for it is the word of God and teaches us the way to be happy in this world and in the next. Continue therefore to read it and to regulate your life by its precepts.64 JOHN JAY, ORIGINAL CHIEF JUSTICE U. S. SUPREME COURT
The Bible is the chief moral cause of all that is good and the best corrector of all that is evil in human society – the best book for regulating the temporal [secular] concerns of men.65 NOAH WEBSTER
Bibles are strong entrenchments. Where they abound, men cannot pursue wicked courses.66 JAMES MCHENRY, SIGNER OF THE CONSTITUTION
Not only did the Court disregard these stated beliefs of the Founders, it falsely asserted:
The [First] Amendment’s purpose was not to strike merely at the official establishment of a single sect…. It was to create a complete and permanent separation of the spheres of religious activity and civil authority.67 (emphasis added)
This absurd claim completely reverses the Founders’ intent; their purpose for the First Amendment was to “strike at the official establishment of a single sect” and definitely was not to completely and permanently separate the religious and civil spheres. Notice (emphasis added in each quote):
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.68 GEORGE WASHINGTON
The great pillars of all government and of social life … [are] virtue, morality, and religion. This is the armor, my friend, and this alone, that renders us invincible.69 PATRICK HENRY