The Supreme Court: To Stand as a Guarantee

The first provision in the U.S. Constitution’s Bill of Rights bars “an establishment of religion.” Last week the Supreme Court handed down a decision affirming that provision—and thereby brought upon itself a deluge of denunciation. Eminent clergymen attacked the decision as “shocking” and “tragic.” Members of Congress put forward a score of proposed constitutional amendments to nullify the effects of the ruling. Newspapers, snowed under by wrathful letters from readers, erupted in editorial anger. To the Supreme Court Building in Washington came hundreds of letters and telegrams agreeing with the sentiments of Los Angeles Municipal Judge Ida May Adams, who concluded her usual court-opening prayer with a new plea: “God bless the Supreme Court and in Your wisdom let it be shown the error of its ways.”

“An Abomination.” The decision that summoned the storm involved a brief prayer that the New York State Board of Regents had composed and “recommended” for use in public schools. The Regents were trying to resolve a conflict over what kind of religious observances should be held in public schools, attended by children of parents who profess various religious beliefs. The issue had vexed school authorities for more than a century: in the 1840s, Roman Catholics rioted in New York City in protest against the reading of the King James Version of the Bible in public schools.

Trying to avoid offending anybody, the Regents adopted this “nondenominational” compromise: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.” Many school boards adopted the prayer. Normally it was spoken by the class in unison at the start of each school day, with the teacher leading the recitation. In keeping with state court decisions, the Regents notified school authorities that no child could be compelled to say the prayer, and that any child had the right to be excused from the room while the prayer was being recited.

Inoffensive as the prayer seemed to the Regents, it offended a lot of people. The American Jewish Congress and several other major Jewish groups officially protested against it. So did the American Civil Liberties Union and various freethinker groups. The leaders of a Lutheran church in Peekskill, N.Y., denounced the prayer as “an abomination” (because it contained no mention of Christ). The Methodist Church board in Schenectady, N.Y., declared that the “place for specific teaching and formal practice of religion is in the home and in the church.”

Three years ago, five parents of children attending public schools in New Hyde Park, a suburban community on Long Island, brought suit in the New York State Supreme Court to halt recitation of the Regents’ prayer on the ground that it violated their beliefs. Of the five parents, two were synagogue-going Jews, one was a Unitarian, one a member of the Society for Ethical Culture, one an agnostic. After the Court of Appeals, the state’s highest court, upheld the Regents’ prayer in a 5-to-2 ruling, the parents carried their case to the U.S. Supreme Court.

Words of the Author. In a decision written by Justice Hugo L. Black (see box*) and joined in by four other members, the Supreme Court ruled in favor of the plaintiffs. Justice William O. Douglas wrote a separate concurring opinion. Only one member, Justice Potter Stewart, dissented from the ruling.* Said the majority decision: The Constitution’s “prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.” The Founding Fathers, Justice Black went on, put the clause prohibiting “establishment of religion” into the Constitution “to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support, or influence the kinds of prayer the American people can say.” That prohibition was later extended to the states by the Fourteenth Amendment, which declares: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

The First Amendment, said the court, was not written to destroy religion, but to protect religion against government. “It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

“To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, it may be appropriate to say in the words of James Madison, the author of the First Amendment: ‘It is proper to take alarm at the first experiment on our liberties.’ “

“Shocked & Frightened.” The Board of Regents accepted the verdict, declared that the decision “is now the law of the land, and it will be so recognized by all school authorities in the state.” Jewish religious leaders who commented on the decision were almost all favorable toward it. A group of 13 Unitarian Universalist ministers in New York City issued a statement declaring that the decision was not only constitutionally “sound” but also “in the interest of religion.” Said the Rev. William B. Sperry of Detroit’s Episcopal Christ Church: “It is wrong for the churches to expect the government to implement their teachings.” Wrote Harold E. Fey, editor of the Protestant Christian Century: “The High Court has not outlawed prayer . . . The only thing the court has outlawed is transgression by any official, including educational officials, of the proper separation between church and state.”

But a large majority of Protestant and Roman Catholic clergymen were sharply hostile toward the decision. Francis Cardinal Spellman, Roman Catholic Archbishop of New York, pronounced himself “shocked and frightened.” The decision, he said, “strikes at the very heart of the Godly tradition in which America’s children have for so long been raised.” Evangelist Billy Graham condemned the ruling as “another step toward secularism.” A conference of 120 Protestant Episcopal clergymen from Long Island churches adopted a resolution saying: “The ultimate effect of this decision may be to nullify and threaten with destruction the American people’s long-continued and precious religious tradition of reliance upon Divine Providence.”

Two former U.S. Presidents took issue with the court. Said Dwight Eisenhower: “I always thought that this nation was essentially a religious one.” Herbert Hoover was more outspoken. He called the decision a “disintegration of one of the most sacred of American heritages.” Congress, he said, “should at once submit an amendment to the Constitution which establishes the right to religious devotion in all governmental agencies—national, state or local.” President Kennedy carefully—and wisely—supported the court’s decision-making power, avoided direct comment on the merits of the decision (Eisenhower employed much the same technique in his reaction to the 1954 desegregation decision and was loudly criticized for his hesitancy). For those who disagree with the decision, said Kennedy, there is “a very easy remedy, and that is to pray ourselves, and I would think it would be a welcome reminder to every American family that we can pray a good deal more at home and attend our churches with a good deal more fidelity.” Melancholy Lessons. Much of last week’s controversy arose from confusion about what the Supreme Court ruled—and, perhaps more importantly, what it did not rule. All too typical was the reaction of an Atlanta clergyman who called the decision “the most terrible thing that’s ever happened to us”—then admitted he did not really know what the decision said.

Others instinctively felt that the Supreme Court was setting forth a new doctrine that distorted the intent of the authors of the First Amendment. Thus Cardinal Spellman called the ruling a “tragic misreading of the prayerfully weighed words of our Founding Fathers.” But Founding Father James Madison, among others, interpreted the prohibition against “establishment of religion” far more strictly and sweepingly than the Supreme Court did last week. In Madison’s opinion, tax exemption for churches was unconstitutional. So were chaplains for Congress or for the armed forces. So.

indeed, were presidential proclamations of a religious nature. “Is the appointment of chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?” Madison asked. “In strictness [the answer] must be in the negative.” In shaping the First Amendment, Madison and his fellow founders had melancholy lessons of history in mind. In the Europe that the colonists left behind, state power had often been used to enforce religion, and the results over the centuries had been war, strife and persecution. To assure freedom of religion in the new nation, the founders wrote into the First Amendment a double-barreled safeguard: they barred both any “establishment of religion” and any restriction on “the free exercise” of religion. The Supreme Court last week based its ruling solely on the “establishment” clause, but many Americans got an impression that the court impaired the free exercise of religion.

This impression was fortified by Justice Stewart’s dissent, in which he argued that “to deny the wish of these children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation.” But the right of free exercise carries with it the right not to participate in any sort of religious activity, and it is begging a point to say that New York schoolchildren were free to leave the classroom during the recitation of the prayer. Even the children of the five Long Islanders who brought the suit remained in their classrooms, because, as one parent explained, their parents did not want them to become “pariahs” among their schoolmates.

“In Our Public Life.” Adding greatly to the confusion was Justice Douglas’ concurring opinion—which was mistakenly understood by many as having some force of law. Douglas reached far beyond Black, presenting the view that the customary daily prayers at the opening of each house of Congress, and even the ritual cry of the marshal at the opening of each Supreme Court session (“God save the U.S. and this honorable court”), violate the establishment clause of the First Amendment. Douglas’ opinion magnified the widespread fears that the court’s decision would lead to the erasing of all traces of religion from government, even the words “under God” from the Pledge of Allegiance and “In God We Trust” from the currency.

But Douglas’ line of argument was contradicted and canceled out in Black’s majority opinion. For reasons best known to himself. Black put his limitation in the form of a footnote. It said: “There is of course nothing in the decision reached here that is inconsistent with the fact that schoolchildren and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity, or by singing officially espoused anthems which include the composer’s professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God.” Black’s footnote was virtually ignored in the public reporting of the decision; it was omitted even in the text as published by the inclusive New York Times. Had it been given half as much attention as Douglas’ sweeping dicta, much of the confusion and controversy might have been avoided.

Despite its limited scope, broad implications could be reasonably read into the court’s decision. It might, for example, be taken as a court warning against federal aid to church schools. But Black’s opinion was most notable for its failure to relate its specific ruling to the unique American proposition—that of a government of freedom under God.

The Founding Fathers, of whatever religious hue, adhered to that proposition and expressed it both in word and writing. But, perhaps out of fear and scorn for the established and official state churches of Europe, they never sought to codify the proposition as law. Rather, they tried to protect it by strictly limiting the participation of government in official religious activity.

Thus the U.S. evolved not only as a country in which every man could worship God as he saw fit, but also as a country with “a Godly tradition.” Unless emotions released by last week’s misunderstood decision are strangely perverted, the country will stay that way.

* Joining with Black were Chief Justice Earl Warren, Justices Tom Clark, John Marshall Harlan and William J. Brennan Jr. Black and Warren are Baptists; Clark, Harlan and Douglas are Presbyterians (Douglas is a minister’s son; Clark served for years as a church elder). Brennan is the court’s only Roman Catholic. Justices Felix Frankfurter and Byron R. White took no part in the decision. White and Dissenter Stewart are Episcopalians, and Frankfurter is a Jew by origin, but answers “no comment” when asked about his religious affiliation.