Engel v. Vitale (1962) And Everson v. Ewing (1962) (Part 2) – Guest Essayist: Tony Williams

“Almighty God, we beg Thy blessings upon us, our parents, our teachers, and our country:” Engel v. Vitale (1962)

In the Everson v. Board of Education of Ewing Township (1947), the Supreme Court decided that it was constitutional for the state of New Jersey to reimburse parents for the cost of bus transportation, even to a parochial school. In rendering the decision, the Court attempted to use evidence from the nation’s founding to prove that there was a “wall of separation between church and state.”

Justice Hugo Black drew directly from Thomas Jefferson’s Letter to the Danbury Baptists in which President Jefferson wrote: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.” It is noteworthy that he referred to the national Congress in the First Amendment, and not the states. Jefferson knew it was constitutional for the states to have official churches because the Bill of Rights did not apply to the states.  Indeed, Massachusetts was the last of the original states to disestablish its official church in 1833.

Thomas Jefferson and James Madison supported disestablishment and idea of the natural right of freedom of conscience. But, other founders supported a closer connection between church and state even though they supported religious liberty. Patrick Henry supported a bill in Virginia for limited public support of religion to promote civic virtue.  In his Farewell Address, one of the most important state papers of the founding, George Washington warned:  

And let us with caution indulge the supposition that morality can be maintained without religion…reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.  It is substantially true that virtue or morality is a necessary spring of popular government.

The “incorporation” doctrine applied the Bill of Rights to the states with the Fourteen Amendment. This became the basis for the Supreme Court taking up Establishment Clause cases in local public schools in Everson and then Engel. What had been an issue related to the principle of federalism now became a national issue.  The Court also chose to use Jefferson’s letter as the basis for its jurisprudence in the founding understanding of the First Amendment rather than other important founding documents.

In November 1951, the New York Board of Regents adopted a prayer for public schools in the state.  The prayer was prepared by an ecumenical board of rabbis, priests, and ministers.  It was intended to be a non-denominational prayer consistent with the recognition of a Creator in the Declaration of Independence.  It read, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, and our country.”

In 1958, the Herricks school district on Long Island introduced the prayer into their schools.  The prayer was voluntary and students could either be excused from reciting the prayer or from the classroom altogether while the prayer was said.  A total of twenty-eight families with thirty-nine children (.01 percent of students) requested the exemption and received it.  Most of the parents were satisfied, but a few sought to fight the practice altogether.

One of the fathers, Steven Engel, was angered when he discovered his son, Michael, saying the prayer in class.  He reprimanded his son and sent an irate letter to the school board, claiming that the prayer caused “rancor and bitterness” between people of different faiths. Eleven parents sued and were represented by a lawyer, William Butler, from the New York American Civil Liberties Union (ACLU). 

In August 1959, the trial judge determined that the prayer was constitutional because it was voluntary and non-sectarian. In addition, he decided that school prayers were considered constitutional at the time of the ratification of both the First and Fourteenth Amendments. Butler was not discouraged because his aim was to bring the case to the U.S. Supreme Court to ban school prayer throughout the country, not just in New York.  As it was, the New York Supreme Court Appellate Division affirmed the decision of the trial court. The appellate court decided that the American system of government was deeply rooted in a belief in a Supreme Being.  Moreover, schoolchildren recognized this in countless ways including reciting the Pledge of Allegiance, singing patriotic songs, and studying the New York Constitution.

Justice Hugo Black was eager for the Supreme Court to hear an appeal and admitted he wanted to ensure that the justices would strike down school prayer. “I want to know what these guys do before I vote to take it.”  Chief Justice Earl Warren thought the prayer was as constitutional as reciting the Pledge of Allegiance, but the Court agreed to hear the case.  Oral arguments proceeded in early April 1962. The plaintiffs argued that the prayers were “coercive” and “Christian” that violated the constitutional rights of atheists. The defendants countered that the prayers were non-compulsory and non-denominational.  They resulted in no harm and were just as constitutional as the prayers that opened the Supreme Court.

The decision in Engel v. Vitale was announced on June 25, 1962.  The Court ruled by a margin of 6-1 that the school prayer was unconstitutional.  Justice Black wrote the opinion and argued that the Court did not need to find any direct evidence of coercion, though he reasoned that the prayer was indirectly coercive even if it were voluntary.  The school prayer was unconstitutional because it acted to “establish an official religion.”  Justice William Douglas wrote a strong concurring opinion, writing that not only the prayer but the Pledge of Allegiance, “In God We Trust” on U.S. currency, and military chaplains were unconstitutional.  Douglas also thought the students and other “captive audiences” were forced to participate in the prayers, and thus they were unconstitutional.

Justice Potter Stewart was the lone dissenter who thought that a prayer that was voluntary and non-denominational did not establish an official religion. In addition, he pointed out that the divine supplications made in presidential oaths, the opening of congressional and Supreme Court sessions, the Pledge of Allegiance, and many other examples were “deeply entrenched and highly cherished spiritual traditions of our Nation,” and thus part of America’s “civil religion.”

The Engel v. Vitale (1962) decision had a fundamental impact shaping how the Court interpreted schools and prayer under the Establishment Clause of the First Amendment.  Over the next several decades, the Court would ban similar non-denominational and voluntary prayers at graduation ceremonies and football games among other venues.  The issue continues to be part of America’s culture war over values.

Engel v. Vitale (1962) Supreme Court decision:
http://caselaw.findlaw.com/us-supreme-court/370/421.html

Everson v. Ewing (1962) Supreme Court decision:
http://caselaw.findlaw.com/us-supreme-court/330/1.html

Tony Williams is a Constituting America Fellow and the author of five books including Washington & Hamilton: The Alliance that Forged America.

2 Responses to “Engel v. Vitale (1962) And Everson v. Ewing (1962) (Part 2) – Guest Essayist: Tony Williams”

  1. Barb Zack says:

    Kicking God completely out of the public realm, starting with Schools. And then we wonder why we are in the mess we are in now. Why there seems to be no moral compass or direction. Why the Left and it’s amoral morals, it’s valueless values and it’s truth is relative philosophy have taken over, and we seem helpless to stop it.

  2. Publius Senex Dassault says:

    Thank you for citing the historical references and noting that Jefferson’s letter to Danbury Baptist along with those of Washington and Henry.

    1. Almighty SCOTUS, we beg of you to stop redefining and applying the Constitution based on constantly changing whimsical social, progressive winds.

    2. Almighty USGOV, we beg of you to stop defining and providing all our needs according to thy ignorant social ideologies and ever shrinking and insecure treasuries.

    3. Our SCOTUS who art in DC,
    Progressive be thy tree.
    Your decisions come,
    Our rights succumb.
    In urban, suburban, and rural America.

    Give us this year,
    Our annual drear.
    Dissolve us the foundation,
    That established our nation;
    As we’ve forgotten them too.

    Lead us not per our youth,
    But deliver us from truth.
    For thine is the judgment and power,
    From which we cower –
    until the next decision. A Zen

    PSD.

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