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In New York the teacher who leads in prayer is on the public payroll ; and the time she takes seems minuscule as compared with the salaries appropriated by state legislatures and Congress for chaplains to conduct prayers in the legislative halls. Only a bare fraction of the teacher's time is given to reciting this short 22-word prayer, about the same amount of time that our Marshal spends announcing the opening of our sessions and offering a prayer for this Court. Yet for me the principle is the same, no matter how briefly the prayer is said, for in each of the instances given the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution, It is said that the element of coercion is inherent in the giving of this prayer If that is true here, it is also true of the prayer with which this Court is convened, and with those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a "captive” audience.
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.” A religion is not established in the usual sense merely by letting those who chose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise it inserts a divisive influence into our communities. The New York court said that the prayer given does not conform to all of the tenets of the Jewish, Unitarian, and Ethical Culture groups. One of petitioners is an agnostic.
"We are a religious people whose institutions presupposes a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313. Under our Bill of Rights free play is given for making religion an active force in our lives. But “if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government.” McGowan v. Maryland, 366 U.S. 420, 563 (dissenting opinion). By reason of the First Amendment government is commanded “to have no interest in theology or ritual” (id., at 564), for on those matters "government must be neutral.” Ibid. The First Amendment leaves
we live believes that we are in the right. We should at all times recognize God's province over the lives of our people and over this great Nation.” Ibid. And see 100 Cong. Rec. 7757 et seq. for the debates in the House.
The Act of March 3, 1865, 13 Stat. 517, 518, authorized the phrase "In God We Trust" to be placed on coins. And see 17 Stat 427. The first mandatory requirement for the use of that motto on coins was made by the Act of May 18, 1908, 35 Stat. 164. See H.R. Rep. No. 1106, 60th Cong., 1st Sess. ; 42 Cong. Rec. 3384 et seq. The use of the motto on all currency and coins was directed by the Act of July 11, 1955, 69 Stat. 290. See H.R. Rep. No. 662, 84th Cong., 1st Sess.; S. Rep. No. 637 84th Cong., 1st Sess. Moreover, by the Joint Resolution of July 30, 1956, our national motto was declared to be “In God We Trust.” 70 Stat. 732. In reporting the Joint Resolution, the Senate Judiciary Committee stated :
“Further official recognition of this motto was given by the adoption of the StarSpangled Banner as our national anthem. One stanza of our national anthem is as follows:
'O, thus be it ever when freemen shall stand
O'er the land of the free and the home of the brave.' "In view of these words in our national anthem, it is clear that 'In God we trust has a strong claim as our national motto." S. Rep. No. 2703, 84th Cong., 2d Sess., p. 2.
6 The fact that taxpayers do not have standing in the federal courts to raise the issue (Frothingham V. Mellon, 262 U.S. 447) is of course no justification for drawing a line between what is done in New York on one hand and on the other what we do and what Congress does in this matter of prayer.
7 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.
8 Some communities, including Washington, D.C., have a Christmas tree purchased with the taxpayers' money. The tree is sometimes decorated with the words "Peace on earth, goodwill to men.” At other times the authorities draw from a different version of the Bible which says "Peace on earth to men of goodwill." Christmas, I suppose, is still a religious celebration, not merely a day put on the calendar for the benefit of merchants.
9 Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amendment, provided in Article 3 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."
the Government in a position not of hostility to religion but of neutrality. The philosophy is that the atheist or agnostic—the nonbeliever—is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests.
My problem today would be uncomplicated but for Everson v. Board of Education, 330 U.S. 1, 17, which allowed taxpayers money to be used to pay "the bus fares of parochial school pupils as a part of a general program under which" the fares of pupils attending public and other schools were also paid. The Everson case seems in retrospect to be out of line with the First Amendment. Its result is appealing, as it allows aid to be given to needy children. Yet by the same token, public funds could be used to satisfy other needs of children in parochial schools-lunches, books, and tuition being obvious examples. Mr. Justice Rutledge stated in dissent what I think is durable First Amendment philosophy:
“The reasons underlying the Amendment's policy have not vanished with time or diminished in force. Now as when it was adopted the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident groups. Id. Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all will embroil the state in their dissensions. Id. Par. 11." Id., pp. 53–51.
What New York does with this prayer is a break with that tradition. I therefore join the Court in reversing the judgment below.
SUPREME COURT OF THE UNITED STATES
No. 468—October Term, 1961
STEVEN I. ENGEL ET AL., PETITIONERS V. WILLIAM J. VITALE, JR., ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
[June 25, 1962] 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 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 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.” Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God.'
1 See Warren, The Supreme Court in United States History, Vol. 1, p. 469.
? See Rule IIÍ, Senate Manual, s. Doc. No. 2, 87th Cong., ist Sess. See Rule VII, Rules of the House of Representatives, H.R. Doc. No. 459, 86th Cong., 2d Sess.
3 For example :
... it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute with success the functions allotted to His charge. In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States.
“Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall take my present leave; but not without resorting once more to the benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquility, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His devine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend."
On March 4, 1797, President John Adams said:
"And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence."
On March 4, 1805, President Thomas Jeffers on said:
“I shall need. too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations."
On March 4. 1809, President James Madison said:
"But the source to which I look ... is in ... my fellow-citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will under every difficulty be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past as well as our fervent supplications and best hopes for the future.”
On March 4, 1865. President Abraham Lincoln said:
"Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yes, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousands years ago, so still it must be said the judgments of the Lord are true and righteous altogether.'
“With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds. to care for him who shall have borne the battle and for his widow and his
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. The third stanza of "The Star-Spangled Banner,” made our National Anthem by Act of Congross in 1931,5 contains these verses :
"Blest with vict'ry and peace, may the heav'n rescued land
Praise the Pow'r that hath made and preserved us a nation !
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.”' 6 In 1952 Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer. Since 1864 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. 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 Nationtraditions 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."
Senator JOHNSTON. Widespread public interest has followed the rendition of the prayer decision in the Engel case. Since the introduction of the before described resolutions and the notification of hear
orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations."
On March 4, 1885, President Grover Cleveland said:
“And let us not trust to human effort alone, but humbly acknowledging the power and goodness of Almighty God, who presides over the destiny of nations, and who has at all times been revealed in our country's history, let us invoke His aid and His blessing upon our labors.”
On March 5. 1917. President Woodrow Wilson said:
“I pray God I may be given the wisdom and the prudence to do my duty in the true spirit of this great people."
On March 4, 1933, President Franklin D. Roosevelt said :
"In this dedication of a Nation we humbly ask the blessing of God. May he protect each and every one of us. May he guide me in the days to come.”
On January 21, 1957, President Dwight D. Eisenhower said:
"Before all else, we seek, upon our common labor as a nation, the blessings of Almighty God. And the hopes in our hearts fashion the deepest prayers of our whole people."
On January 20, 1961, President John F. Kennedy said :
“The world is very different now. ... And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe-the belief that the rights of man come not from the generosity of the state, but from the hand of God.
“With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that here on earth God's work must truly be our own."
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.
5 36 U.S.C. $ 170. 6 36 U.S.C. § 172. 7 36 U.S.C. $ 185.
813 Stat. 517, 518; 17 Stat. 427 ; 35 Stat. 164 ; 69 Stat. 290. The current provisions are embodied in 31 U.S.C. $$ 324, 324a.
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 p. 8, supra, 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?
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
her our Lives, our Fortunes and our sacred Honor."
ings thereon, a great number of organizations and individuals have indicated their desire to be heard on the issue involved. It is the desire of this committee to hear as many of these witnesses as is possible. If it develops that it is impossible to hear all of them, they will be permitted to file with the committee written statements expressing their views which will appear as a part of the record. Every witness will be required to submit in advance a brief prepared statement, and it is desired that the contents of this statement be summarized orally in a time period that will not exceed 15 minutes.
We are pleased to have with us today our colleagues in the Senate who are prepared to give their testimony in regard to one or another of the proposed resolutions.
I believe that the first witness we have is Senator John Stennis, of Mississippi.
Senator KEATING. May I make a short statement?
Senator JOHNSTON. You certainly may. STATEMENT OF HON. KENNETH B. KEATING, A U.S. SENATOR FROM
THE STATE OF NEW YORK
Senator KEATING. Mr. Chairman, the Supreme Court's decision invalidating the New York public school prayer was handed down exactly 1 month ago yesterday. In that period, 7,203 people in my State have written to me protesting the Court's ruling. A much smaller but substantial number, 256, advised me that they strongly oppose any attempt to alter the decision.
I might add just this morning I have been presented with two petitions on this subject. The first petition was presented to me by Mr. H. Joseph Mahoney in behalf of the Young Americans for Freedom, Inc. It contains the signatures of 12,351 citizens of Westchester County and neighboring areas in support of an amendment to reverse the decision of the Supreme Court.
The second petition, which was personally presented to me this morning, by Mayor Gibbons of the village of Tuckahoe and surrounding areas, strongly protests the decision of the Supreme Court.
I would like to request, Mr. Chairman, that the text of these petitions, as well as the text of the resolution adopted by the Council of the City of Yonkers, N.Y., in support of an amendment to invalidate the Court's decision, be printed in the record of these hearings following my opening statement and that the petitions and the signatures be filed as part of the committee's record of these proceedings, but not printed therein.
Senator JOHNSTON. There being no opposition from members of the committee, they shall be made a part of the record and as requested the others be made a part of the files of the committee.
(The petition of the Young Americans for Freedom, Inc., follows:)
Young Americans for Freedom, Inc. Dated July 25, 1962. Petition to the Government of the United States of America. We, the undersigned, protest the ruling of the Supreme Court of the United States that the recitation of the nondenominational New York State Board of Regents authorized prayer in public schools is unconstitutional.