U.S. Supreme Court

ENGEL v. VITALE, 370 U.S. 421 (1962)

370 U.S. 421

No. 468.
Argued April 3, 1962.
Decided June 25, 1962.

MR. JUSTICE BLACK delivered the opinion of the Court.

MR. JUSTICE DOUGLAS, concurring.

MR. JUSTICE STEWART, dissenting.

MR. JUSTICE FRANKFURTER took no part in the decision of this case.

MR. JUSTICE WHITE took no part in the consideration or decision of this case.

MR. JUSTICE STEWART, dissenting.

A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them [370 U.S. 421, 445] and upon their parents, their teachers, and their country. The Court today decides that in permitting this brief nondenominational prayer the school board has violated the Constitution of the United States. I think this decision is wrong.

The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody's religion. For the state courts have made clear that those who object to reciting the prayer must be entirely free of any compulsion to do so, including any "embarrassments and pressures." Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624. But the Court says that in permitting school children to say this simple prayer, the New York authorities have established "an official religion."

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.

The Court's historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. 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. Moreover, I think that the Court's task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation," a phrase nowhere to [370 U.S. 421, 446] be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.

At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall our Crier has said, "God save the United States and this Honorable Court."1 Both the Senate and the House of Representatives open their daily Sessions with prayer.2 Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God.3 [370 U.S. 421, 447]

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.4 One of the stanzas of "The Star-Spangled Banner," made our National Anthem by Act of Congress in 1931,5 contains these verses:

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."6 In 1952 Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer.7 Since 1865 the words "IN GOD WE TRUST" have been impressed on our coins.8 [370 U.S. 421, 450]

Countless similar examples could be listed, but there is no need to belabor the obvious.9 It was all summed up by this Court just ten years ago in a single sentence: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313.

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" when they proclaimed the freedom and independence of this brave new world.10

I dissent.

[Footnote 1] See Warren, The Supreme Court in United States History, Vol. 1, p. 469.

[Footnote 2] See Rule III, Senate Manual, S. Doc. No. 2, 87th Cong., 1st Sess. See Rule VII, Rules of the House of Representatives, H. R. Doc. No. 459, 86th Cong., 2d Sess.

[Footnote 3] For example:

On April 30, 1789, President George Washington said:

On March 4, 1797, President John Adams said:

On March 4, 1805, President Thomas Jefferson said:

On March 4, 1809, President James Madison said:

On March 4, 1865, President Abraham Lincoln said:

On March 4, 1885, President Grover Cleveland said:

On March 5, 1917, President Woodrow Wilson said:

On March 4, 1933, President Franklin D. Roosevelt said:

On January 21, 1957, President Dwight D. Eisenhower said:

On January 20, 1961, President John F. Kennedy said:

[Footnote 4] My brother DOUGLAS says that the only question before us is whether government "can constitutionally finance a religious exercise." The official chaplains of Congress are paid with public money. So are military chaplains. So are state and federal prison chaplains.

[Footnote 5] 36 U.S.C. 170.

[Footnote 6] 36 U.S.C. 172.

[Footnote 7] 36 U.S.C. 185.

[Footnote 8] 13 Stat. 517, 518; 17 Stat. 427; 35 Stat. 164; 69 Stat. 290. The current provisions are embodied in 31 U.S.C. 324, 324a.

[Footnote 9] I am at a loss to understand the Court's unsupported ipse dixit that these official expressions of religious faith in and reliance upon a Supreme Being "bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance." See ante, p. 435, n. 21. I can hardly think that the Court means to say that the First Amendment imposes a lesser restriction upon the Federal Government than does the Fourteenth Amendment upon the States. Or is the Court suggesting that the Constitution permits judges and Congressmen and Presidents to join in prayer, but prohibits school children from doing so?

[Footnote 10] The Declaration of Independence ends with this sentence: "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." [370 U.S. 421, 451]

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