Vine & Fig Tree
Voluntary School Prayer
Does Not Violate the Establishment Clause
Justice Douglas' Surprising Admission

In the 1962 U.S. Supreme Court case of Engel v. Vitale, 370 U.S. 421, Justice Douglas, who concurred in the decision to remove voluntary prayer from government schools, admitted:

Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amendment, provided in Article III that "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

Douglas favors the removal of voluntary prayer from public schools. But Douglas wrote a concurring opinion because his thoughts were not expressed in the majority opinion of the Engel Court. He is being honest in his concurring opinion, because the plain history of the Establishment Clause indicates a desire to avoid legally preferred churches, that is, denominations. But it is utterly unlikely that the same men who wrote the First Amendment would write Article III of the Northwest Ordinance if they really intended to avoid all endorsement of religion. The Northwest Ordinance plainly declares that religion and morality are "necessary for good government and the happiness of mankind." That makes those who do not believe in religion feel like "outsiders," and this plainly violates the Everson and Allegheny definitions of "separation of church and state."

Justice Douglas made this candid admission:

At the same time I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. The Court analogizes the present case to those involving the traditional Established Church. We once had an Established Church, the Anglican. All baptisms and marriages had to take place there. That church was supported by taxation. In these and other ways the Anglican Church was favored over the others. The First Amendment put an end to placing any one church in a preferred position. It ended support of any church or all churches by taxation. It went further and prevented secular sanction to any religious ceremony, dogma, or rite. Thus, it prevents civil penalties from being applied against recalcitrants or nonconformists. A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads.

Engel v. Vitale at 442 and note 7, emphasis added

It's refreshing when liberals are honest -- if only for a moment.

Douglas then went on to join the Court in overthrowing the historic meaning of the Constitution and the Original Intent of its Framers. But his admissions show that the Court is engaged in "judicial activism" rather than a strict construction of the Constitution.

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