Engel V Vitale Supreme Court Case Study 43

Supreme Court, Special Term, Nassau County.

, J.

Does any provision of the United States or New York State Constitution invalidate a school board resolution directing that as a daily procedure, following the salute to the flag, the following prayer be said in the schools of the district: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country"?

The attempt to find a commonly acceptable prayer is not new. Madison recorded "a project of a prayer, by Governor Livingston, father of the present Judge, intended to comprehend and conciliate college students of every Christian denomination, by a form composed wholly of texts and phrases of Scripture"; and Benjamin Franklin wrote his own more generalized version of the Lord's Prayer, with detailed explanation of the reasons for each change. Nor is the problem of prayer in New York public schools novel. In a series of rulings beginning in 1837 and continuing until at least 1909, the Superintendent of Common Schools of the State of New York held that a "teacher might open his school with prayer, provided he did not encroach upon the hours allotted to instruction, and provided that the attendance of the scholars was not exacted as a matter of school discipline." The rationale of the policy is most clearly stated by Superintendent Spencer, in a decision rendered May 13, 1839, as follows:

In 1951 this policy was altered when the Board of Regents adopted a statement of belief recommending the prayer quoted above with the suggestion that "at the commencement of each school day the act of allegiance to the Flag might well be joined with this act of reverence to God." Respondent school board having followed the Regents' recommendation and directed recital of the prayer, the question presented to this court is whether as a matter of power, rather than as a question of policy, it may legally do so? For the reasons hereafter set forth at length, it is concluded that the "establishment" clause of the Constitution does not prohibit the noncompulsory saying of the Regents' prayer in the public schools, but that the "free exercise" clause requires that respondent board take affirmative steps to protect the rights of those who, for whatever reason, choose not to participate.

The case arises as an article 78 proceeding, seeking an order in the nature of mandamus directing the respondent Board of Education of Union Free School District Number Nine, Town of North Hempstead, to discontinue use of the prayer. The five petitioners are taxpayers within the district and parents of children in schools of the district. Permission to intervene was asked by 16 taxpayer-parents who oppose the petition, and intervention was allowed pursuant to section 1298 of the Civil Practice Act, but limited in the court's discretion to the merits of the constitutional questions under applicable provisions of the United States Constitution and the Constitution of the State of New York. The State Board of Regents did not seek to intervene but asked and without objection was granted leave to file a brief amicus curiæ. The action of the board which is questioned is the adoption on July 8, 1958 of a resolution "that the regents prayer be said daily in our schools" and the direction, at the same meeting, by the board "to the District Principal that this be instituted as a daily procedure to follow the Salute to the flag". The respondent Board of Education answered and moved to dismiss on a number of procedural grounds.

THE PROCEDURAL QUESTIONS

First, it is claimed that since the matter "can be adequately reviewed by an appeal to a court or to some other body or officer", to wit — the Commissioner of Education, pursuant to section 310 of the Education Law, subdivision 4 of section 1285 of the Civil Practice Act precludes consideration of the instant petition. That section, however, is not controlling in a proceeding in the nature of mandamus "`to compel performance of a duty specifically enjoined by law'", nor even in what would normally be a discretionary matter if a constitutional issue is involved. It is, therefore, unnecessary to rule on petitioners' further contention that appeal to the Commissioner is not "adequate."

The board next points to the fact that its resolution was adopted July 8, 1958, more than four months before the commencement (Jan. 22, 1959) of this proceeding, and says that the proceeding is, therefore, not timely brought. But since what is charged in the petition is a continuing failure to obey the requirements of the Federal and State Constitutions, and the proceeding was commenced within four months after the demand for discontinuance, it is within the time allowed by section 1286 of the Civil Practice Act.

Third, the board argues that a question of constitutionality must be raised in a plenary action rather than a special proceeding. This contention is based on the well-established rule that in a proceeding to review an application addressed to the discretion of an administrative body, petitioner is held to have conceded, for the purpose of the application, the constitutionality of the statute or ordinance under which the body acts. But the application here is one involving performance of a constitutional duty, and that question is properly raised in an article 78 proceeding.

Fourth, the board objects that petitioners are, in effect, seeking an injunction, which relief is not available in this proceeding. Of course, as the language of section 1284 ("`duty specifically enjoined by law'" [italics supplied]) and the name (mandamus) of the former procedure imply, article 78 procedures encompass relief which might be ordered by a mandatory injunction. That fact alone will not put outside the scope of article 78 proceedings an action, such as the present one, seeking to compel the board to obey the command of specific constitutional provisions, and thus within the express language of subdivision 3 of section 1284.

Finally, it is claimed that the petition is defective and should be dismissed as a matter of law because it fails to allege (a) that the schools attended by petitioners' children are within the school district and under control of respondent board, and (b) facts which establish that the board failed to perform a duty enjoined by law. With respect to the allegation of control, petitioners sought at the hearing permission both to reply and to amend their petition and have filed a reply containing the allegation said to be missing. Since the petition does not in haec verba make the allegation, the court in the exercise of the discretion with which it is clothed by section 1294 of the Civil Practice Act, grants the request to amend in order to obviate any question on the point, although the fact is one that will be judicially noticed and, therefore, need not be pleaded or proved. Paragraph 4 of the petition is deemed amended by inserting at the end thereof the words: "All of the schools referred to in paragraph `2' of this petition are within Union Free School District Number Nine and under the jurisdiction and control of Respondents.", and the answers of respondents and intervenors are deemed answers to the petition as thus amended.

Whether the petition alleges facts sufficient to establish that the board failed to perform a duty enjoined by law is largely dependent upon a determination of the constitutional duty imposed. For reasons hereafter set forth at length, it is held that while the board may authorize, it may not require, the saying of the prayer in question, but that if it does so, it must bring the authorization to the attention of parents of children in the schools, establish a procedure for excusing nonparticipants not only from saying the prayer but from the room, if they so elect, and take affirmative steps to protect the religious freedom of both nonparticipants and participants.

The petition alleges that the board by resolution directed that the prayer be said as a daily procedure and that it is being said aloud each day in the schools of the district, that the saying of the prayer and the manner and setting in which it is said are contrary to the religious practices of those petitioners and their children who are believers and contrary to the beliefs concerning religion of those petitioners and their children who are nonbelievers, and that demand has been made for discontinuance of the prayer and refused by respondent board. What is alleged thus shows violations of constitutional duty in that (1) the board has required rather than authorized the daily use of the prayer, and (2) the manner of its being said does not protect the rights of nonbelievers or the religious scruples of all of the believers. What is alleged is a "due process" rather than an "equal protection" question and it, therefore, is not necessary to allege or prove purposeful discrimination in administration of the resolution. While a presumption of constitutionality might, in view of the absence of allegations of fact showing compulsion, warrant the court in construing the board's direction as being in fact only an authorization, such a presumption, if one exists in religion cases, cannot supply the missing safeguards which the constitutional privilege of free exercise mandates. The petition states a cause of action, therefore.

The foregoing disposes of all of the board's defenses except the sixth, which sets up the constitutional right of children other than petitioners' to say the prayer free from interference, and of all procedural questions except petitioners' motion for a jury trial and the determination of petitioners' standing to sue. For reasons hereafter set forth the defense is held to be without merit and the motion for jury trial is denied.

Petitioners' standing to sue is established by the Zorach case as a matter of both New York and Federal law. This results not only from the fact that petitioners are parents of children who are currently attending the schools subject to the program but also from the fact that the prayer and the manner and setting in which it is said are contrary to the beliefs of petitioners and their children. There will have been "actual interference" with the religious freedom of petitioners and of their children unless they are given notice of and an opportunity to make a conscious choice concerning participation in the prayer, and unless steps are taken to see that their freedom not to participate is respected.

Since it has been suggested that section 801 and section 3204 of the Education Law impose a duty on the Board of Regents, and that respondent board in requiring the prayer was only carrying out a duty imposed on it by the Regents, the legal status of respondent board should also be ascertained. The Board of Education of a union free school district exists as a separate body corporate. As such it is distinct from the Board of Regents, which heads the Department of Education and which appoints, and at pleasure may remove, the Commissioner of Education. The Commissioner of Education is the chief executive officer of the Board of Regents, enforces the laws relating to education, and carries out the policies of the Board of Regents. Attendance of minors from 7 to 16 years of age upon full-time day instruction is compulsory and instruction is required by statute in particular subjects. Neither prayer nor religion is mentioned in the law, except that because of their religious beliefs, children may be excused, under regulations of the Regents, from attendance at health or hygiene education and absence for religious observance and education must be permitted under rules established by the Commissioner. The Regents must prescribe courses in patriotism and citizenship which must be attended by all pupils over eight years of age, and in the history and meaning of the Declaration of Independence and the United States and New York Constitutions which must be attended by all pupils in the eighth and higher grades. The contention that respondent board acted in furtherance of the Regents' directions issued under the foregoing provision cannot be sustained, however, for the provision speaks of "patriotic and civic service" and the fostering of "moral and intellectual qualities" whereas the documents issued by the Regents concern themselves with not only those problems but also "spiritual training". Further, those documents make no reference to the provision and are entitled "Regents Statement" and "Regents' Recommendations", obviously not mandatory prescriptions. Further, the board's answer, insofar as it relies on a direction that no child is to be required to join in the prayer, is inconsistent with such a contention, since the statute is compulsory and the Legislature made no provision for exception. Finally, neither the Regents' Statement nor the board's resolution makes the distinction that the statute does between children over and under the age of eight years. It follows, therefore, that the board's resolution, though referring to and inspired by the Regents' Statements, must be considered voluntary and that the Regents' policy and program set forth in those statements are involved in this decision only insofar as they form the background for and are referred to in the action of the board. In short, what is to be considered is the power of the board, unsupported by any administrative, legislative or constitutional requirement that it provide spiritual training or adopt the resolution of July 8, 1958.

THE CONSTITUTIONAL QUESTIONS

We are brought then to a determination of the constitutional issues. The question is a close one, and since, as Mr. Justice HOLMES observed the "controversies are apt to be fierce in proportion to the nicety of the question", a few general observations are, perhaps, in order. In the first place, a judge's task in such a determination is "never [to] substitute his personal appraisal of the interests at stake, or his personal preference between them * * * [but rather] * * * to decide how those who have passed the `enactment' would have dealt with the `particulars' before him, about which they have said nothing whatever." Second, the emotionalism generated by such controversies necessitates careful analysis of the arguments made in order to place them in proper perspective, to exclude purely policy matters and to reject in terrorem contentions made without substantial basis. Thus, the thesis that the present rate of juvenile delinquency evidences the need for prayer in the schools is a matter of policy and of no weight in determining what constitutional provisions framed in 1789 and 1865 mean. So also while it may validly be argued that the appointment of chaplains by the Congress in 1791 represents a practical construction by the Congress responsible for the First Amendment of its meaning, the fact that the appropriation acts covering the pay of Congressional chaplains has never been held invalid is of no weight, since no citizen has standing to bring an action to prevent such a payment. Again, Franklin's suggestion to the Constitutional Convention of daily prayer as a means of breaking its deadlock assumes lesser proportion when it is realized that the suggestion, though seconded, was not adopted by the convention. Similarly, to be rejected, in view of the essentially different nature of prayer on the one hand from the study of historical fact on the other, is the specter of "Godless" schools in which, if the prayer here involved is not sanctioned, references to God in the Constitution and the Declaration of Independence will not be permitted. In sum, the constitutional line to be drawn can only be determined by an analysis of the fact situation involved, the history of the constitutional provisions, and the holdings (together with but distinct from the language used in stating those holdings) of judicial decisions construing the constitutional provisions (or provisions essentially similar).

The Fact Situation

The facts on which the constitutional determination is to be made encompass those drawn from the answer and answering affidavit as well as from the petition and reply. For purposes of clarification, they are restated as follows: Petitioners are citizens, resident in Union Free School District Number Nine, whose children, pursuant to the Education Law, attend schools run by the district. Petitioners include members of the Jewish faith, of the Society for Ethical Culture, of the Unitarian Church, and one nonbeliever. The respondent board on July 8, 1958, by majority vote resolved "that the regents prayer be said daily in our schools" and "gave direction to the District Principal that this be instituted as a daily procedure to follow the Salute to the flag." The prayer referred to, the words of which are set forth at the beginning of this opinion, originated in the Regents' Statement on Moral and Spiritual Training in the Schools adopted November 30, 1951, which statement was supplemented by the Regents' Recommendations for School Programs on America's Moral and Spiritual Heritage adopted March 25, 1955. It is said aloud at the commencement of the school day, by each class, in the classroom in the presence of a teacher. Though not specifically incorporated in the board's resolution, or otherwise publicized, the board directed that no child was to be required or encouraged to join in the prayer against his or her wishes; only one request that a child be excused from saying the prayer was received in the schools of the district, which request was respected; and no child has directly asked to be excused from joining in the prayer nor has either a parent or a child sought permission for a child to leave the classroom during the saying of the prayer. The saying of the prayer and the manner and setting in which it is said are contrary to the religion and religious practices of those petitioners, and their children, who are believers, and to the beliefs concerning such matters held by the petitioner, and his children, who are nonbelievers. Petitioners have demanded that the saying of the prayer in the schools of the district be discontinued, which respondents have refused to do.

The Nature of Prayer and of the Instant Prayer

The first inquiry to which we are brought by the facts above found is the nature of prayer. The dictionary definitions include: "Act of addressing supplication to a divinity or object of worship; the offering of adoration, confession, supplication, thanksgiving, etc., to a God", "[t]he form of words used in praying", "[a] form of religious service or worship for public or common use, consisting largely of prayers; as, Morning or Evening Prayer". The religious nature of prayer was recognized by Jefferson and has been concurred in by theological writers, the United States Supreme Court and State courts and administrative officials, including New York's Commissioner of Education. A committee of the New York Legislature has agreed.

The Board of Regents as amicus curiæ, the respondents and the intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. On this score, they argue that it is established that this is a religious nation, that many examples exist of the religious belief of the Founding Fathers, that the wording of the prayer in invoking "Almighty God", in acknowledging "our dependence upon Thee" and in asking "Thy blessings" is derived from national organic documents, that the prayer is to be said in conjunction with the Pledge of Allegiance and "as an incident to the Pledge of Allegiance ceremony", that it was recommended with the understanding that no child would be forced to say it, and that the recommendation was silent as to requirements respecting attire, posture, gestures and the like. The argument proves too much, both as to "establishment" and "free exercise". If it be assumed for the moment that the Constitution prohibits prescription of mode of worship and that, therefore, prayer may not be prescribed, the State's interest in familiarizing students with the religious nature of our heritage would not justify the use of prayer as a vehicle for imparting that knowledge since there are other equally effective and constitutionally uninhibited means of achieving that end. If, on the other hand, the purpose is to inculcate in pupils a love of God, then as we shall hereafter see, as an exercise required of all pupils, it would constitute religious instruction in violation of the "establishment" clause and as a permissive exercise it would, unless it gives positive recognition to the right of any participating child to adopt any posture, use any gesture, wear any attire, use any language, or follow any other practice which his or her own religious beliefs may dictate, violate the "free exercise" clause of the Federal and State Constitutions, as well as the parent's rights, hereafter discussed, under the due process clause to control the education of his child.

It is, however, also contended that the recognition of prayer is an integral part of our national heritage, and that, therefore, the "establishment" clause cannot have been intended to outlaw the practice in schools any more than from the rest of public life; that is, that prayer in the schools is permissible not as a means of teaching "spiritual values" but because traditionally, and particularly at the time of the adoption of the First and Fourteenth Amendments, this was the accepted practice. With this argument the court agrees. To spell out the reasons for this conclusion, however, requires reference to history.

The History of the Constitutional Provisions and of Public Education

Although the writings of Jefferson and Madison are often referred to on matters of constitutional interpretation, it was Jefferson's view that in such matters one should "recollect the spirit manifested in the debates, and * * * conform to the probable [meaning] in which it was passed" and Madison argued that "It is the sense of the nation, therefore, not the sense of the General Convention, that is to be consulted; and that sense, if not taken from the act itself, is to be taken from the proceedings of the State Convention & other public indications as the true keys to the sense of the Nation." Unfortunately, as Story pointed out, the varying interpretations presented in such State conventions makes them at best uncertain and inconclusive criteria. Generally, then, in construing the Constitution, one must look to the history of the times and examine the state of things when the provision in question was adopted.

The history of the adoption of the Fourteenth Amendment has been examined in three exhaustive studies. While they show that Congressman Bingham and Senator Howard in debate indicated the purpose of the amendment to be to guarantee the personal rights protected by the first eight amendments against State action, the Supreme Court has within the last few months once again refused to adopt this thesis, and in any event these are general references, making no specific allusion to the guarantees concerning religion. The closest such was Bingham's reference, in a speech accepting his renomination to Congress, to his part in framing the first section of the Fourteenth Amendment, which "he said, placed the golden rule in the Constitution."

If we turn then from constitutional history to the history of the times, we find that by 1868, when the Fourteenth Amendment was ratified, "the separation of public education from Church entanglements, of the State from the teaching of religion, was firmly established in the consciousness of the nation", but that such separation did not extend to the exclusion of prayer or the reading of the Bible from public school routines. While some of the State Constitutions then in force contained provisions forbidding sectarian instruction or the use of public funds for denominational schools, or both, the schools were generally opened with prayer. Massachusetts had a law requiring the reading of the Bible in the schools, and New York's Superintendent of Common Schools had ruled no less than five times that prayer and Bible exercises could be conducted in the schools before school hours, but could not be made compulsory. Only two cases dealing with the Bible in the schools had reached the appellate courts; in both use of the Bible was allowed to continue, in one on the basis of its literary value, in the other, in part, because the regulation included provision for excuse. The controversy which began in the late 1830's over religion in the schools and public support of parochial schools included as one of its facets mandatory Bible reading and prayers in the schools, the Catholic minority seeking to exclude the Bible and prayer, the Protestant majority strenuously opposing such exclusion. The battle that followed saw the formation in 1864 of the National Association to Secure the Religious Amendment to the Constitution, an organization dedicated to having God and the Bible recognized in the Constitution, and the counter organization of the Liberal League whose demands included the discontinuance of all religious instruction, and particularly use of the Bible in the schools. The climax of the controversy came with President Grant's 1875 address to the Army of the Tennessee inveighing against public support of sectarian schools and his annual message of that year calling for an amendment requiring the States to maintain public schools and forbidding the teaching in them of religious, atheistic or pagan tenets. This was followed in 1876 by the introduction of the Blaine Amendment, which would have incorporated that principle in the Federal Constitution, and the inclusion in the Republican party platforms of 1876 and 1880 of planks supporting Grant's position. Although the amendment was defeated in the Senate, its defeat was apparently not due to opposition to its principle, and was followed by adoption of similar provisions in the Constitutions of most, if not all, of the States which did not have such provisions, and in a Congressional requirement that newly admitted States include in their Constitutions a provision for maintenance of a school system free from sectarian control.

Notwithstanding the strong current of opinion thus demonstrated, the history of the times shows that it did not extend to the exclusion of the Bible and prayer from the schools. Thus out of the New York phase of the battle came an 1844 Act of the Legislature prohibiting New York City's Board of Education from excluding Bible reading, without note or comment, but prohibiting it from directing which version should be read; its Massachusetts phase required Horace Mann, often referred to as the father of the American public school system, to defend himself against a charge that as Secretary of the State Board of Education, he sought to drive religion from the schools, with the denial "that I have ever attempted to exclude religious instruction from school, or to exclude the Bible from school"; its national phases saw the rise of the Know-Nothings and the American Protestant Association, both bitterly anti-Catholic organizations, the ensuing formation of the American Party and the adoption in 1855 by that party of a platform which favored maintenance of undenominational schools but declared that the Bible "should not be excluded from the public schools", and the inclusion in the Senate version of the Blaine Amendment of a specific provision that "This article shall not be construed to prohibit the reading of the Bible in any school or institution." And during all this period, McGuffey's Third Reader, first published in 1837, revised in 1843, 1853, 1878, 1896 and 1901, and widely used in schools throughout the United States over a period of 70 years, included the Lord's Prayer (though in slightly revised form, as a poem), an Evening Prayer and a Child's Hymn. The conclusion is inevitable that in 1868, the "sense of the nation", to revert to Madison's phrase, could not be read as indicating, by ratification of the Fourteenth Amendment, the exclusion of the Bible or of prayer from the public schools.

Is there anything in the history of the First Amendment that might lead to a contrary conclusion? If we look at the history of the period in which Madison introduced his proposed amendments, we find that church establishments were still maintained in Massachusetts, Connecticut, New Hampshire, South Carolina and Maryland, that education was largely a matter of church schools and that, as would be expected under church aegis, prayer, and indeed religious instruction, were a regular part of school routine. The fact that Madison's fifth proposal, that "No State shall violate the equal rights of conscience" failed of adoption; the various versions through which his fourth proposal, which became the First Amendment, passed; and the language of the final provision that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" made it clear, and it was early so held, that the First Amendment had no application to the States. The only phase of the history of the amendment related to prayer was the proposal, made in the Senate, that "Congress shall make no law establishing articles of faith or a mode of worship". The attempt to thus limit the amendment was rejected, but indicates that even those who sought a limited form of restriction agreed that the prohibition against establishment extended to "mode of worship," which would include prayer. One must conclude from the debates and the history, therefore, that the First Amendment's relationship to prayer was general, in the sense that there should be no compulsion to recite a prescribed form of prayer, rather than specific, in the sense that the then existing routine of prayer should be excluded from the schools.

If we ignore the limits of constitutional history above set forth, and examine into the individual views of the Founding Fathers, we are brought to no different conclusion. Thus, as we have noted above, Franklin both wrote his own version of the Lord's Prayer and suggested the efficacy of daily public prayer to the Constitutional Convention. As concerns Madison, though in later life he changed his views, he was a member of the committee of Congress which arranged for a Congressional Chaplain, and served with Jefferson on the Board of Visitors of the University of Virginia which in its 1822 report and 1824 regulations permitted use of rooms in the main building for religious worship. Jefferson, who thought the prescription of a day of prayer so far a violation of the First Amendment and the reserved powers of the States as to prohibit him from proclaiming a Thanksgiving Day, nonetheless provided in his 1817 draft of a bill to establish a public school system in Virginia only that "no religious reading, instruction or exercise shall be prescribed or practiced, inconsistent with the tenets of any religious sect or denomination", and also participated in the adoption (as did Madison) of the 1824 regulations for the University of Virginia providing that "students of the University will be free, and expected to attend religious worship at the establishment of their respective sects, in the morning, and in time to meet their school in the University at its stated hour". While the strength of view and breadth of vision of Madison's famous Memorial and Remonstrance and Jefferson's Republican Notes on Religion may be considered the core of thought embodied in the First Amendment, there is nothing in any of those documents that indicates an intention on the part of either author to exclude the routine of prayer from the schools, provided only that that routine be not compulsory.

The Decisional Law

Since our conclusion must, then, be that neither the sense of the nation, the debates, nor the individual views of the framers proscribe prayer as the ceremonial opening of a school day, we turn to the decisional law. As above noted, the Supreme Court early adopted the position that the First Amendment did not apply to the States; until 1922, it continued to assert this view despite the passage of the Fourteenth Amendment. It also, within four years after the ratification of the Fourteenth Amendment, decided in the Slaughter-House Cases that the privileges and immunities clause of that amendment did not include the rights set forth in the first eight amendments. Despite repeated assaults on that position, the court continues to adhere to it.

Nonetheless, both the "free exercise" and "establishment" provisions of the First Amendment are now clearly applicable to the States. Though the early decisions so indicating relied on "free speech" cases and referred to infringement of the "liberty" protected by the due process clause, most of the later cases speak of the "First Amendment, made applicable to the states by the Fourteenth," without spelling out how, and consider and construe the language of the First Amendment as though it were directly applicable. None of the cases makes mention of the limitation implicit in the language of the due process clause: "deprive any person of life, liberty or property, without due process of law." We need not now consider whether every "establishment" would constitute a deprivation of liberty or what leeway the phrase "without due process of law" allows for the exercise of legislative discretion in State "establishment" cases, for the court has established due process criteria (in other than religion cases to be sure, but which must nonetheless be considered applicable to such cases since the hypothesis is that they arise under the same clause) which must be held to exclude the school-prayer situation.

Thus, the court has held "from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such." Only those provisions apply which are "implicit in the concept of ordered liberty" and they are applied to prohibit action which is "repugnant to the conscience of mankind" or which violates principles "so rooted in the traditions and conscience of our people as to be ranked as fundamental." While the concept of ordered liberty clearly includes freedom of religion, with respect to both "establishment" and "free exercise", legislative permission for the noncompulsory public recital of prayer cannot be said to be repugnant to the conscience of mankind. Indeed, when one recalls the tradition of prayer in the schools both before and after the inaugration of the public school system, in the Congress and in other "deliberative bodies" and "conventions"; and can point not only to a resolution, passed by Congress on the day after it passed the proposal which became the First Amendment, calling for the designation of "a day of public thanksgiving and prayer" but also to recognition of that tradition going back to Plato and Plutarch, one must conclude that due process does not proscribe legislative permission to say a noncompulsory prayer in the schools. "The traditions and habits of centuries were not intended to be overthrown when that [the Fourteenth] amendment was passed."

That public prayer does not fit the rubric of due process does not, however, dispose of the matter. Since the court has dealt with the religion problems presented to it as though the First Amendment were directly applicable to the States, we must ascertain the reach of its decisions with respect to prayer in the schools. To do that we must also understand the relationship of the parent and the state to the education of the child.

Meyer v. Nebraska invalidated a Nebraska statute that prohibited the teaching of a foreign language in any school below the eighth grade. Holding that the statute denied due process to both teachers and parents, the court said that the Fourteenth Amendment protected the right "to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Though the end, that all might know English, was desirable, it could not be coerced. Pierce v. Society of Sisters held invalid, as a denial of due process to both private school operators and parents, an Oregon statute requiring that all children attend public school. The court's decision made clear that the state may not "standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state * * *."

Both the Meyer and the Pierce cases recognized, however, the right of the State to prescribe a minimum curriculum, and that right has been upheld against the claim of a parent who sought to send his child to a sectarian school where the secular minimum was not taught. The parent's right to control and direct his child has also been held subject to the state's right to require military training at a state university, and to intervene in the interest of health to require that the child be given proper medical attendance, to compel vaccination, or to prohibit the use of young children in evangelical work in violation of the child labor law.

The rule thus to be adduced is that the parent has primary control over his child but that the state, if it acts for the general welfare or the welfare of the child and there is a substantial nexus between the action required and the end sought to be attained, may exercise a paramount control. That is to say, the parent's primary right of control over his child remains subject to the exercise of the State's police power in a proper case.

Investigation of the decisions relating to religious freedom shows that the same rule applies: freedom of religion is a preferred but not an absolute right, upon which the State may impose restrictions if the restrictions are reasonable in relation to the gravity of the danger against which they are intended to protect. Thus the court in ruling on rights to church lands in Virginia after the Revolution, held that the Virginia Constitution did not require abolition of all religious corporations and that "the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties". Again, in Watson v. Jones, in holding legal tribunals bound by decisions of church authority on matters of church law and discipline, the court recognized "the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights". The proviso was applied in both Reynolds v. United States and Davis v. Beason to hold that polygamy is a crime despite religious belief to the contrary. In the latter case in explaining the scope and limitation of First Amendment rights, the court said: "The first Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishment inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the Amendment in question. It was never intended or supposed that the Amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation."

The right thus recognized to adhere to and publicly to express religious beliefs extends to evangelization in the public streets, in the sale of religious tracts, and in public parks, as well as in a company town. In the field of education, it permits the Congress to expend Indian trust funds for the religious education of the Indians since otherwise their freedom of religion would be violated, permits a Jehovah's Witness child to attend school despite a refusal to salute the flag, permits a parent to demand the release of his child for a religious holiday, or, at least, is not violated when release is granted for such holidays. It also is not violated when the Congress recognizes the religious scruples of conscientious objectors by exempting them from the draft, although clearly such an exemption is a matter of grace and not of constitutional requirement. It does not, however, even on religious grounds, permit withdrawal of children from school in the face of a statute requiring attendance until age 16, nor, as we have seen, sanction violation of a child labor ordinance, the refusal to give instruction in the minimum curriculum required by statute, nor refusal to take a course in military science at the state university.

If we turn our attention to the "establishment" clause, we find that the court has held that there is no constitutional impediment to Congressional repeal of a charter granted under territorial law to the Mormon Church, that the draft exemption of conscientious objectors is not the making of a law respecting an establishment, and that the amendment does not proscribe a contract between the Government of the District of Columbia and a hospital run by an order of Catholic Sisters but incorporated as a separate entity. Its most important decisions on the subject, however, were in the field of education, in Everson v. Board of Education,Illinois ex rel. McCollum v. Board of Education and Zorach v. Clauson.

The Everson case held that a statute authorizing reimbursement of parents for expenditures for bus transportation of their children to school, including Catholic parochial schools, did not constitute an establishment, its purpose being merely to provide safe transportation and thus protect the general welfare. The decision included the now famous dictum that: "The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between Church and State.'" The McCollum case relied upon that dictum to invalidate a released time system under which pupils whose parents signed permission cards were given 30 or 45-minute periods of religious instruction on public school premises during school hours by teachers employed by religious organizations though subject to the approval of the public school superintendent. Nonparticipating children attended a regular class or a study hall during the released time period. The majority opinion refused to accept the argument that the First Amendment forbids only preference of one religion over another, not impartial governmental assistance to all, and held that since public buildings were being used for religious instruction and the state's compulsory education system was used to help provide pupils for the program of instruction carried on by the separate religious sects, the program was unconstitutional. A concurring opinion, written by Mr. Justice FRANKFURTER, reviewed the history of education in colonial times and through the period in which the Fourteenth Amendment was adopted and concluded that separation of the state from the teaching of religion was the accepted principle, and that, by permitting such teaching on school time and property, pressure was put upon children to attend, and a feeling of separation was engendered. Only Justice REED dissented.

The final decision, Zorach v. Clauson, was rendered four years later. During the intervening period a storm raged in legal and educational fields over the McCollum ruling. The Zorach decision upheld the New York released time system. The court held that the First Amendment does not require separation in every respect, the question in each case being one of degree. It emphasized the religious nature of our people and said that to refuse to accommodate the public service to their spiritual needs would be to prefer nonbelievers over believers. It pointed out that, since the children were released for instruction outside the school, neither religious instruction nor expenditure of public funds was involved and added that there was no evidence that coercion was in fact being used to force or persuade students to take religious instruction. Holding that "[g]overnment may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. * * * It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction," the court concluded that a system whereby the public schools do no more than accommodate schedules to a program of outside religious instruction does not violate the amendment.

The Zorach decision constitutes a retreat from both Everson and McCollum: where Everson's broad dictum, reaffirmed in McCollum, outlawed aid to all religions, Zorach recognized that government can, without violation, accommodate all religions; where McCollum invalidated an alliance between religion and the compulsory education system, Zorach upheld the same alliance, for the same purpose, though in a different place. The Everson holding, that the expenditure of tax funds for a general welfare purpose was not invalidated because religious groups also benefited, was extended by Zorach to validate minimal use of the tax supported school system for a religious purpose, as an accommodation of the spiritual needs of our people. The McCollum holding, that religious instruction as a part of a compulsory school system is unconstitutional without regard to whether actual compulsion operates was adhered to, but the fact situation in Zorach was held sufficiently different in degree to warrant sanction of the accommodation. This would appear to be the reverse side of the "free exercise" coin: "establishment" prohibits any compulsion in matters of religion that operates directly on the individual, but prohibits indirect compulsion (as through the use of general tax funds for a religious purpose) only if the nexus between government and religion thus produced is too close. The democratic nature of our Government precludes the imposition of sanctions in the field of religion; the religion nature of the governed sanctions the inclusion of religion in the processes of democratic life; the dividing line between permitted accommodation and proscribed compulsion is a matter of degree, to be determined anew in each new fact situation.

Despite an apparent contradiction in terms, the First Amendment's "establishment" and "free exercise" clauses clearly protect the nonbeliever as well as the believer in God. This is borne out by decisions of the Supreme Court, by utterances of the Founding Fathers and by a provision of the Constitution itself. Thus the Everson decision states that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers", the McCollum ruling protected the rights of an atheist, and the Zorach decision, by refusing to prefer "those who believe in no religion over those who do believe" recognized but refused priority to the nonbeliever's right. The principle thus stated is implicit in the provision of article VI of the United States Constitution that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States". It also was the point of view of Jefferson and Madison. Thus, Jefferson stated in his Republican Notes on Religion that "it does me no injury for my neighbor to say there are twenty Gods, or no God" and Madison incorporated in the fourth point of his Memorial and Remonstrance the statement that: "Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us." Indeed, the only suggestions to the contrary are the statement, in the course of debate on the First Amendment, by Representative Huntington, that he hoped that the amendment would be made in such a way as to secure rights of conscience "but not to patronise those who professed no religion at all", and a concurring opinion stating that freedom "of" religion does not mean freedom "from" religion. The opinion's apothegm is true only in a most limited sense. Every individual has a constitutional right personally to be free from religion, but that right is a shield, not a sword, and may not be used to compel others to adopt the same attitude. Mr. Huntington's remark may be construed as suggesting merely that nonbelievers are not to be preferred over believers. To the extent that it may be read as suggesting that nonbelievers have any lesser rights, it is inconsistent with the views of Madison and Jefferson referred to above and with the fact that, at the time that it was uttered, less than 20% of the population of New England (the best churched section of the colonies) had any formal connection with organized religion. Such an isolated statement, nowhere shown to have been brought to the attention of those who ratified the amendment, cannot be considered the "sense of the nation".

The principles of decisional law so far considered have been stated in Federal cases concerned with the United States Constitution. Except for the few incidental references to prayer hereinbefore noted, however, nothing in those cases has related to prayer in the schools or the closely kindred subject of the Bible in the schools. Before attempting to apply the rules so far adduced to the fact situation of the present case, State decisions relating to prayer, the Bible and baccalaureate services must be considered.

The use of prayer in the schools either separately or together with the Bible has been upheld in ten and struck down in seven State decisions. Of the cases concerned solely with the reading of the Bible, nine have upheld and two have struck down Bible reading as a devotional exercise. It has also been held that a school board may not be required to hold Bible reading exercises, that school baccalaureate services and graduation exercises may be held in a church, that the school system may not be used as a means of distributing religious pamphlets or Gideon Bibles, and that a Board of Education may not display in the classrooms of its schools a plaque purporting to set forth the Ten Commandments. Most of the above decisions have been made under State constitutional provisions prohibiting sectarian teaching. They conflict concerning whether the Bible or the Lord's Prayer is sectarian. Many of the cases upholding such practice have pointed to the fact that the regulation involved did not make it compulsory; but regulations permissive in terms have been struck down because of the compulsion and discrimination involved in having to ask to be excused.

Most of the decisions make no reference to the First and Fourteenth Amendments, a few make passing reference to them but rest decision primarily on State provisions, only four discuss the effect of the amendments.People ex rel. Vollmar v. Stanley held that under the Fourteenth Amendment children cannot be compelled, against their parents' wishes, to take instruction not essential to good citizenship and that since the morality of the Bible could be taught by other methods, Bible reading was not essential and, therefore, could not be made compulsory. It then discussed, as a State constitutional question "with which the United States Constitution has nothing to do," whether Bible reading had to be excluded altogether. It concluded that noncompulsory reading of the Bible without comment was not sectarian, though the conclusion might be different if it were shown that sectarian sections of the Bible were read, and issued a writ requiring revocation of the order of compulsory attendance. Doremus v. Board of Education, held that under the applicable statute the practice of reading the Bible and reciting the Lord's Prayer was permissive and not compulsive; that the sense of the First Amendment does not prohibit the recognition of God; and that the practice did not constitute sectarian instruction or worship or set up religious instruction or religious worship in aid of one or more religions or constitute the establishment of religion or prohibit the free exercise of religion. Tudor v. Board of Education, decided by the same court, struck down the distribution of Gideon Bibles through the schools. The decision reviewed the history of the adoption of the First Amendment, and the religious motivation of the colonists, and held that the distribution of the New Testament constituted a religious preference in violation of the First Amendment. It distinguished the Doremus ruling and held the Gideon Bible to be a sectarian book. It further held that the practice involved could not be viewed as merely an accommodation, particularly in view of the testimony of psychiatrists that the effect of distribution under the authority of the school would be to create a subtle pressure on the child and to create tensions among religious groups. Finally, the Attorney General of the State of California has held that the First Amendment prohibits recitation of a prayer identical with the prayer involved in the instant case except that in place of the word "parents" it substituted the word "home". His decision reviewed the Federal cases and concluded that a public school teacher may not be required to participate in such a prayer exercise and that, in any event, the use of the prayer would be unconstitutional as a violation of the rights of the children of atheist and agnostic parents. To require the children to participate in prayers contrary to the belief of their parents would, he held, be a material encroachment on the separation of church and state, and the right to be absent he considered an inadequate protection from the very real, though subtle, pressure which the indorsement of school and teacher would produce upon the child.

How do the above decisions and the principles to be drawn from them affect the instant case? The Zorach case holds that the Constitution does not require separation in every and all respects and, as we have seen, constitutional history confirms a tradition of prayer, including prayer in the schools. Even without the constitutional history, some form of prayer would appear to fall within the realm of permissible accommodation. Despite the board's "spiritual heritage" argument, the prayer under consideration cannot be deemed religious instruction. It is recited during opening exercises rather than as a part of any instructional period. It is phrased in traditional prayer form rather than in any form normal for instructional materials. Essentially, it is devotional and, as such, is designed to be repeated daily, without change, over a 12-year school course. Twenty-two words in length, and thus taking substantially less than one minute to recite and a good deal less time for recitation than does the legislative prayer deemed by Zorach to be within permissible constitutional degree, the instant prayer, at least when its recitation is limited to daily exercises at the opening of school, must be classified as outside McCollum's proscription of religious instruction and within Zorach's sanction as an accommodation.

As Zorach recognizes, however, the prayer exercise would nonetheless be objectionable if there were direct compulsion. The board's resolution of July 8, 1958, is framed in mandatory terms. While the answering affidavit states that direction has been given that no child shall be coerced or in any manner persuaded to participate, there is no indication that either the resolution or the direction has been brought to the attention of either the parents or the children. This is not a situation, such as pertained in the Zorach case, where prior parental consent has been obtained. In view of that fact and in view of the fact that a school child cannot be expected to understand that a resolution phrased in mandatory terms may be violated with impunity or that such a child, not advised of his right to do so, will not normally be sufficiently aggressive to claim his constitutional privilege not to participate, the court holds that the resolution of July 8, 1958, in its present form, is objectionable. The matter will, therefore, be remanded to the board for modification of its resolution to establish a procedure whereby the parents of each child are advised of the adoption of the resolution calling for the saying of prayer, of the wording of the prayer and of the procedure to be followed when it is said and requested to indicate whether the child shall or shall not participate in the exercise.

Since the matter is, therefore, to be remanded to the board, it is not necessary to hear petitioners' evidence on the subject of coercion. In any event, to the extent that petitioners seek to rely on the pressure resulting from the school's apparent sanction of prayer and from the necessity of applying for release from the exercise, as distinct from overt acts of the teachers or other school authorities, the evidence would not be material. To recognize "subtle pressures" as compulsion under the amendment is to stray far afield from the oppressions the amendment was designed to prevent; to raise the psychology of dissent, which produces pressure on every dissenter, to the level of governmental force; and to subordinate the spiritual needs of believers to the psychological needs of nonbelievers. The equality of treatment which the amendment was designed to produce does not require, indeed proscribes, so doing.

This is not to say that the rights accorded petitioners and their children under the "free exercise" clause do not mandate safeguards against such embarrassments and pressures. It is enough on this score, however, that regulations, such as were adopted by New York City's Board of Education in connection with its released time program, be adopted, making clear that neither teachers nor any other school authority may comment on participation or nonparticipation in the exercise nor suggest or require that any posture or language be used or dress be worn or be not used or not worn. Nonparticipation may take the form either of remaining silent during the exercise, or if the parent or child so desires, of being excused entirely from the exercise. Such regulations must also make provision for those nonparticipants who are to be excused from the prayer exercise. The exact provision to be made is a matter for decision by the board, rather than the court, within the framework of constitutional requirements. Within that framework would fall a provision that prayer participants proceed to a common assembly while nonparticipants attend other rooms, or that nonparticipants be permitted to arrive at school a few minutes late or to attend separate opening exercises, or any other method which treats with equality both participants and nonparticipants.

While for the reasons stated, the matter is to be remanded to the board, the court should also consider for the board's guidance on remand the questions raised by petitioners with respect to divisiveness, sectarianism and the New York State Constitution. One of the purposes, it has been said, for adoption of the First Amendment was "to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse." Division over compulsory unification through public school programs was referred to in the Barnette decision and the vital necessity to keep divisive forces out of the schools was argued in the McCollum concurring opinion in considering whether the practices involved could be coerced. But what was involved in each situation was compulsion; divisiveness and consciousness of religious differences have not been raised to the level of constitutional absolutes. At most, division may be considered as one of many criteria to be used in determining whether a particular practice is within or without the Constitution. With respect to prayer, the constitutional history above reviewed shows a widespread tradition of prayer. And the existence of religious differences is one of the facts of life of which school children are every day made aware by absences for religious holidays, differences in clothing, in dietary habits and in other observances. Religious tensions are part of everyday living and competition among creeds is advantageous. "Our heterogeneous society with its different religious groups demands the development of respect for differing points of view and for the right of others to believe differently." The genius of the American experiment has been not a lack of difference in point of view, but absolute equality in matters of thought and belief despite all differences.

Petitioners contend, nonetheless, that there is not equality of treatment because the prayer is sectarian. Without analyzing in detail the meaning of the word "sectarian" as construed by the cases discussed above, it may be stated that the instant prayer which invokes "Almighty God" acknowledges "dependence" upon Him and "asks blessings" cannot be considered sectarian in the sense that it prefers any particular sect. The fact that the prayer and the manner of its saying may not conform to all the tenets of the Jewish, Unitarian and Ethical Culture groups, or of any other group, does not mean that the prayer is sectarian. Nor can it be said in any true sense that the granting of legislative permission to say a prayer as an opening exercise in a school is a preference of believers over nonbelievers when the saying of the prayer is not made compulsory. To put it shortly, since each is free to follow his own predeliction with respect to prayer, to participate in a prayer exercise or to refuse to do so, the exercise cannot be deemed preferential.

For the same reason, that is, that the saying of the prayer is not made compulsory, the particular form of prayer adopted by the respondent board in the instant case cannot be considered to be invalid as the prescription of a mode of worship. If it be admitted that the board may constitutionally permit the saying of a prayer as an opening exercise in a school, then it must either adopt a form of prayer or else leave to the discretion of the teacher or a student, if students are used to lead the exercise, the determination of what prayer is to be said. The latter procedure could, of course, result in the use in the schools of prayers identifiable as those of a particular sect, therefore preferential, and, therefore, prohibited. In order to prevent such a possibility and to seek the widest possible acceptance, the board may adopt a form of prayer so long as it does not adopt the prayer of any sect or a prayer sectarian in concept and does not make recitation of the adopted form compulsory.

This is not to say, however, that the board may be compelled to permit the saying of a prayer in the schools. The cases discussed above make clear that though the "free exercise" clause allows wide latitude to the individual in public expression of his belief and public demonstration of his worship, the freedom is not absolute. No sacred cow may impede the flow of traffic so necessary to the general welfare; no belief in polygamy, save the believer from prosecution. The state may determine the time and place, and within the limits suggested above, the manner of the exercise of such freedom, when it acts to protect its own legitimate interests or that of other citizens. The state may, therefore, in determining the curriculum of its schools, exclude any form of devotional exercise. It follows that the board's affirmative defense that petitioners in seeking to interfere with the saying of the prayer by the children of others are acting in violation of the Federal and State Constitutions must be dismissed.

Petitioners' final contention is that the saying of the prayer violates section 3 of article I of the State Constitution. That section reads as follows: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind; and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state." The language of the provision is no broader than the construction given the Federal "free exercise" clause and the cases construing the State provision are entirely consistent with the conclusion reached herein. And while section 4 of article XI of the State Constitution, which prohibits public aid to a school "in which any denominational tenet or doctrine is taught", has not been argued, the conclusion may be stated that since the instant prayer is not "denominational" that section would not exclude it.

In summary, the petition, as amended, is held legally sufficient, the board's defenses are held insufficient and are dismissed, the petitioners' demand for a jury trial is denied for the reason that there is no triable issue of material fact, and the request for mandamus is, as a matter of discretion, denied but the matter is remanded to the board for further proceedings not inconsistent with the foregoing. An order to that effect may be settled on notice.

The court wishes to thank all counsel for the excellent presentation not only in oral argument, but in the original and supplemental briefs. It is, perhaps, not amiss to conclude this opinion with the repetition of a sentence from the decision of Superintendent Spencer referred to in the beginning. Written 120 years ago, the following statement, in the court's view, most completely conforms to the requirements of both constitutional law and of reason: "The simple rule, so to exercise your own rights as not to infringe on those of others will preserve equal justice among all, promote harmony, and insure success to our schools."

U.S. Supreme Court

Engel v. Vitale, 370 U.S. 421 (1962)

Engel v. Vitale

No. 468

Argued April 3, 1962

Decided June 25, 1962

370 U.S. 421

CERTIORARI TO THE COURT OF APPEALS OF NEW YORK

Syllabus

Because of the prohibition of the First Amendment against the enactment of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day -- even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited. Pp. 370 U. S. 422-436.

10 N.Y.2d 174, 176 N.E.2d 579, reversed.

Page 370 U. S. 422

MR. JUSTICE BLACK delivered the opinion of the Court.

The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and

Page 370 U. S. 423

legislative powers over the State's public school system. [Footnote 1] These state officials composed the prayer which they recommended and published as a part of their "Statement on Moral and Spiritual Training in the Schools," saying:

"We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program."

Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District's regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that "Congress shall make no law respecting an establishment of religion" -- a command which was "made applicable to the State of New York by the Fourteenth Amendment of the said Constitution." The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection. [Footnote 2]

Page 370 U. S. 424

We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments. [Footnote 3]

We think that, by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been

Page 370 U. S. 425

religious, none of the respondents has denied this, and the trial court expressly so found:

"The religious nature of prayer was recognized by Jefferson, and has been concurred in by theological writers, the United States Supreme Court, and State courts and administrative officials, including New York's Commissioner of Education. A committee of the New York Legislature has agreed."

"The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. . . . [Footnote 4]"

The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional 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 a part of a religious program carried on by government.

It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer,

Page 370 U. S. 426

which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549, [Footnote 5] set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax supported Church of England. [Footnote 6] The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. [Footnote 7] Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and

Page 370 U. S. 427

obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs. [Footnote 8] Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England's governmentally ordained and supported religion.

It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. [Footnote 9] Indeed, as late as the time of the Revolutionary

Page 370 U. S. 428

War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. [Footnote 10] But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia, where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained such strength that the adherents to the established Episcopal Church were actually a minority themselves. In 1785-1786, those opposed to the established Church, led by James Madison and Thomas Jefferson, who, though themselves not members of any of these dissenting religious groups, opposed all religious establishments by law on grounds of principle, obtained the enactment of the famous "Virginia Bill for Religious Liberty" by which all religious groups were placed on an equal footing so far as the State was concerned. [Footnote 11] Similar though less far-reaching

Page 370 U. S. 429

legislation was being considered and passed in other states. [Footnote 12]

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to 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 --

Page 370 U. S. 430

that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is "nondenominational" and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer, but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may, in certain instances, overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that

Page 370 U. S. 431

laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. [Footnote 13] That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. [Footnote 14] The Establishment Clause

Page 370 U. S. 432

thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. [Footnote 15] Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. [Footnote 16] The Founders knew that, only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind [Footnote 17] -- a law

Page 370 U. S. 433

which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding "unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . ." [Footnote 18] And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. [Footnote 19] It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights, with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an

Page 370 U. S. 434

establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that "More things are wrought by prayer than this world dreams of." It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. [Footnote 20] And there were men of this same faith in the

Page 370 U. S. 435

power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious 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. [Footnote 21]

Page 370 U. S. 436

It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others -- that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. 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, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:

"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever? [Footnote 22]"

The judgment of the Court of Appeals of New York is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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.

Page 370 U. S. 437

[Footnote 1]

See New York Constitution, Art. V, § 4; New York Education Law, §§ 101, 120 et seq., 202, 214-219, 224, 245 et seq., 704, and 801 et seq.

[Footnote 2]

10 N.Y.2d 174, 176 N.E.2d 579. The trial court's opinion, which is reported at 18 Misc.2d 659, 191 N.Y.S.2d 453, had made it clear that the Board of Education must set up some sort of procedures to protect those who objected to reciting the prayer:

"This is not to say that the rights accorded petitioners and their children under the 'free exercise' clause do not mandate safeguards against such embarrassments and pressures. It is enough on this score, however, that regulations, such as were adopted by New York City's Board of Education in connection with its released time program, be adopted, making clear that neither teachers nor any other school authority may comment on participation or nonparticipation in the exercise nor suggest or require that any posture or language be used or dress be worn or be not used or not worn. Nonparticipation may take the form either of remaining silent during the exercise, or, if the parent or child so desires, of being excused entirely from the exercise. Such regulations must also make provision for those nonparticipants who are to be excused from the prayer exercise. The exact provision to be made is a matter for decision by the board, rather than the court, within the framework of constitutional requirements. Within that framework would fall a provision that prayer participants proceed to a common assembly while nonparticipants attend other rooms, or that nonparticipants be permitted to arrive at school a few minutes late or to attend separate opening exercises, or any other method which treats with equality both participants and nonparticipants."

18 Misc.2d at 696, 191 N.Y.S.2d at 492-493. See also the opinion of the Appellate Division affirming that of the trial court, reported at 11 App.Div.2d 340, 206 N.Y.S.2d 183.

[Footnote 3]

368 U.S. 924.

[Footnote 4]

18 Mis. .2d at 671-672, 191 N.Y.S.2d at 468-469.

[Footnote 5]

2 & 3 Edward VI, c. 1, entitled "An Act for Uniformity of Service and Administration of the Sacraments throughout the Realm"; 3 & 4 Edward VI, c. 10, entitled "An Act for the abolishing and putting away of divers Books and Images."

[Footnote 6]

The provisions of the various versions of the Book of Common Prayer are set out in broad outline in the Encyclopaedia Britannica, Vol. 18 (1957 ed.), pp. 420-423. For a more complete description, see Pullan, The History of the Book of Common Prayer (1900).

[Footnote 7]

The first major revision of the Book of Common Prayer was made in 1552, during the reign of Edward VI. 5 & 6 Edward VI, c. 1. In 1553, Edward VI died and was succeeded by Mary, who abolished the Book of Common Prayer entirely. 1 Mary, c. 2. But upon the accession of Elizabeth in 1558, the Book was restored with important alterations from the form it had been given by Edward VI. 1 Elizabeth, c. 2. The resentment to this amended form of the Book was kept firmly under control during the reign of Elizabeth, but, upon her death in 1603, a petition signed by more than 1,000 Puritan ministers was presented to King James I asking for further alterations in the Book. Some alterations were made, and the Book retained substantially this form until it was completely suppressed again in 1645 as a result of the successful Puritan Revolution. Shortly after the restoration in 1660 of Charles II, the Book was again reintroduced, 13 & 14 Charles II, c. 4, and again with alterations. Rather than accept this form of the Book, some 2,000 Puritan ministers vacated their benefices. See generally Pullan, The History of the Book of Common Prayer (1900), pp. vii-xvi; Encyclopaedia Britannica (1957 ed.), Vol. 1, pp. 421-422.

[Footnote 8]

For example, the Puritans twice attempted to modify the Book of Common Prayer, and once attempted to destroy it. The story of their struggle to modify the Book in the reign of Charles I is vividly summarized in Pullan, History of the Book of Common Prayer, at p. xiii:

"The King actively supported those members of the Church of England who were anxious to vindicate its Catholic character and maintain the ceremonial which Elizabeth had approved. Laud, Archbishop of Canterbury, was the leader of this school. Equally resolute in his opposition to the distinctive tenets of Rome and of Geneva, he enjoyed the hatred of both Jesuit and Calvinist. He helped the Scottish bishops, who had made large concessions to the uncouth habits of Presbyterian worship, to draw up a Book of Common Prayer for Scotland. It contained a Communion Office resembling that of the book of 1549. It came into use in 1637, and met with a bitter and barbarous opposition. The vigour of the Scottish Protestants strengthened the hands of their English sympathisers. Laud and Charles were executed, Episcopacy was abolished, the use of the Book of Common Prayer was prohibited."

[Footnote 9]

For a description of some of the laws enacted by early theocratic governments in New England, see Parrington, Main Currents in American Thought (1930), Vol. 1, pp. 5-50; Whipple, Our Ancient Liberties (1927), pp. 63-78; Wertenbaker, The Puritan Oligarchy (1947).

[Footnote 10]

The Church of England was the established church of at least five colonies: Maryland, Virginia, North Carolina, South Carolina and Georgia. There seems to be some controversy as to whether that church was officially established in New York and New Jersey, but there is no doubt that it received substantial support from those States. See Cobb, The Rise of Religious Liberty in America (1902), pp. 338, 408. In Massachusetts, New Hampshire and Connecticut, the Congregationalist Church was officially established. In Pennsylvania and Delaware, all Christian sects were treated equally in most situations, but Catholics were discriminated against in some respects. See generally Cobb, The Rise of Religious Liberty in America (1902). In Rhode Island, all Protestants enjoyed equal privileges, but it is not clear whether Catholics were allowed to vote. Compare Fiske, The Critical Period in American History (1899), p. 76, with Cobb, The Rise of Religious Liberty in America (1902), pp. 437-438.

[Footnote 11]

12 Hening, Statutes of Virginia (1823), 84, entitled "An act for establishing religious freedom." The story of the events surrounding the enactment of this law was reviewed in Everson v. Board of Education,330 U. S. 1, both by the Court, at pp. 330 U. S. 11-13, and in the dissenting opinion of Mr. Justice Rutledge, at pp. 330 U. S. 33-42. See also Fiske, The Critical Period in American History (1899), pp. 78-82; James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia: The Baptists (1900); Cobb, The Rise of Religious Liberty in America (1902), pp. 74-115, 482-499.

[Footnote 12]

See Cobb, The Rise of Religious Liberty in America (1902), pp. 482-509.

[Footnote 13]

"[A]ttempts to enforce by legal sanctions acts obnoxious to so great a proportion of Citizens tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous?, and what may be the effect of so striking an example of impotency in the Government, on its general authority."

Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183, 190.

[Footnote 14]

"It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author, and to foster in those who still reject it a suspicion that its friends are too conscious of its fallacies to trust it to its own merits. . . . [E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less, in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect point to the ages prior to its incorporation with Civil policy."

Id. at 187.

[Footnote 15]

Memorial and Remonstrance against Religious Assessments, II Writings of Madison at 187.

[Footnote 16]

"[T]he proposed establishment is a departure from that generous policy which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. . . . Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last, in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions must view the Bill as a Beacon on our Coast, warning him to seek some other haven where liberty and philanthropy in their due extent may offer a more certain repose from his troubles."

Id. at 188.

[Footnote 17]

5 & 6 Edward VI, c. 1, entitled "An Act for the Uniformity of Service and Administration of Sacraments throughout the Realm." This Act was repealed during the reign of Mary, but revived upon the accession of Elizabeth. Seenote 7supra. The reasons which led to the enactment of this statute were set out in its preamble:

"Where there hath been a very godly Order set forth by the Authority of Parliament for Common Prayer and Administration of the Sacraments to be used in the Mother Tongue within the Church of England, agreeable to the Word of God and the Primitive Church, very comfortable to all good People desiring to live in Christian Conversation, and most profitable to the Estate of this Realm, upon the which the Mercy, Favour and Blessing of Almighty God is in no wise so readily and plenteously poured as by Common Prayers, due using of the Sacraments, and often preaching of the Gospel, with the Devotion of the Hearers: (1) And yet this notwithstanding, a great Number of People in divers Parts of this Realm, following their own Sensuality, and living either without Knowledge or due Fear of God, do willfully and damnably before Almighty God abstain and refuse to come to their Parish Churches and other Places where Common Prayer, Administration of the Sacraments, and Preaching of the Word of God, is used upon Sundays and other Days ordained to be Holydays."

[Footnote 18]

Bunyan's own account of his trial is set forth in A Relation of the Imprisonment of Mr. John Bunyan, reprinted in Grace Abounding and The Pilgrim's Progress (Brown ed.1907), at 103-132.

[Footnote 19]

For a vivid account of some of these persecutions, see Wertenbaker, The Puritan Oligarchy (1947).

[Footnote 20]

Perhaps the best example of the sort of men who came to this country for precisely that reason is Roger Williams, the founder of Rhode Island, who has been described as "the truest Christian amongst many who sincerely desired to be Christian." Parrington, Main Currents in American Thought (1930), Vol. 1, at p. 74. Williams, who was one of the earliest exponents of the doctrine of separation of church and state, believed that separation was necessary in order to protect the church from the danger of destruction which he thought inevitably flowed from control by even the best-intentioned civil authorities:

"The unknowing zeale of Constantine and other Emperours did more hurt to Christ Jesus his Crowne and Kingdome then the raging fury of the most bloody Neroes. In the persecutions of the later, Christians were sweet and fragrant, like spice pounded and beaten in morters: But those good Emperours, persecuting some erroneous persons, Arrius, &c. and advancing the professours of some Truths of Christ (for there was no small number of Truths lost in those times) and maintaining their Religion by the materiall Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep. . . ."

Williams, The Bloudy Tenent, of Persecution, for cause of Conscience, discussed in A Conference betweene Truth and Peace (London, 1644), reprinted in Narragansett Club Publications, Vol. III, p. 184. To Williams, it was no part of the business or competence of a civil magistrate to interfere in religious matters:

"[W]hat imprudence and indiscretion is it in the most common affaires of Life, to conceive that Emperours, Kings and Rulers of the earth must not only be qualified with politicall and state abilities to make and execute such Civille Lawes which may concerne the common rights, peace and safety (which is worke and businesse, load and burthen enough for the ablest shoulders in the Commonweal), but also furnished with such Spirituall and heavenly abilities to governe the Spirituall and Christian Commonweale. . . ."

Id. at 366. See also id. at 136-137.

[Footnote 21]

There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children 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. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

[Footnote 22]

Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183, at 185-186.

MR. JUSTICE DOUGLAS, concurring.

It is customary in deciding a constitutional question to treat it in its narrowest form. Yet at times the setting of the question gives it a form and content which no abstract treatment could give. The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing. [Footnote 2/1] Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.

First, a word as to what this case does not involve.

Page 370 U. S. 438

Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an official prayer and penalize anyone who would not utter it. This, however, is not that case, for there is no element of compulsion or coercion in New York's regulation requiring that public schools be opened each day with the following prayer:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

The prayer is said upon the commencement of the school day, immediately following the pledge of allegiance to the flag. The prayer is said aloud in the presence of a teacher, who either leads the recitation or selects a student to do so. No student, however, is compelled to take part. The respondents have adopted a regulation which provides that

"Neither teachers nor any school authority shall comment on participation or non-participation . . . , nor suggest or request that any posture or language be used or dress be worn or be not used or not worn."

Provision is also made for excusing children, upon written request of a parent or guardian, from the saying of the prayer or from the room in which the prayer is said. A letter implementing and explaining this regulation has been sent to each taxpayer and parent in the school district. As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official.

In short, the only one who need utter the prayer is the teacher, and no teacher is complaining of it. Students can stand mute, or even leave the classroom, if they desire. [Footnote 2/2]

Page 370 U. S. 439

McCollum v. Board of Education,333 U. S. 203, does not decide this case. It involved the use of public school facilities for religious education of students. Students either had to attend religious instruction or

"go to some other place in the school building for pursuit of their secular studies. . . . Reports of their presence or absence were to be made to their secular teachers."

Id. at 333 U. S. 209. The influence of the teaching staff was therefore brought to bear on the student body to support the instilling of religious principles. In the present case, school facilities are used to say the prayer, and the teaching staff is employed to lead the pupils in it. There is, however, no effort at indoctrination, and no attempt at exposition. Prayers, of course, may be so long and of such a character as to amount to an attempt at the religious instruction that was denied the public schools by the McCollum case. But New York's prayer is of a character that does not involve any element of proselytizing, as in the McCollum case.

The question presented by this case is therefore an extremely narrow one. It is whether New York oversteps the bounds when it finances a religious exercise.

What New York does on the opening of its public schools is what we do when we open court. Our Crier has from the beginning announced the convening of the Court and then added "God save the United States and this Honorable Court." That utterance is a supplication, a prayer in which we, the judges, are free to join, but which we need not recite any more than the students need recite the New York prayer.

What New York does on the opening of its public schools is what each House of Congress [Footnote 2/3] does at the opening

Page 370 U. S. 440

of each day's business. [Footnote 2/4] Reverend Frederick B. Harris is Chaplain of the Senate; Reverend Bernard Braskamp is Chaplain of the House. Guest chaplains of various denominations also officiate. [Footnote 2/5]

Page 370 U. S. 441

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 Crier 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. [Footnote 2/6] It is said that the

Page 370 U. S. 442

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 of 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. [Footnote 2/7] 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. Yet once government finances a religious exercise, it inserts a divisive influence into our communities. [Footnote 2/8] 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 the petitioners is an agnostic.

"We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson,343 U. S. 306, 343 U. S. 313. Under our Bill of Rights, free play is given for

Page 370 U. S. 443

making religion an active force in our lives. [Footnote 2/9] 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, 366 U. S. 563 (dissenting opinion). By reason of the First Amendment, government is commanded "to have no interest in theology or ritual" (id. at 366 U. S. 564), for on those matters "government must be neutral." Ibid. The First Amendment leaves 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, 330 U. S. 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.

Page 370 U. S. 444

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. 53-54.

What New York does with this prayer is a break with that tradition. I therefore join the Court in reversing the judgment below.

[Footnote 2/1]

"There are many 'aids' to religion in this country at all levels of government. To mention but a few at the federal level, one might begin by observing that the very First Congress, which wrote the First Amendment, provided for chaplains in both Houses and in the armed services. There is compulsory chapel at the service academies, and religious services are held in federal hospitals and prisons. The President issues religious proclamations. The Bible is used for the administration of oaths. N.Y.A. and W.P.A. funds were available to parochial schools during the depression. Veterans receiving money under the 'G.I.' Bill of 1944 could attend denominational schools, to which payments were made directly by the government. During World War II, federal money was contributed to denominational schools for the training of nurses. The benefits of the National School Lunch Act are available to students in private as well as public schools. The Hospital Survey and Construction Act of 1946 specifically made money available to nonpublic hospitals. The slogan 'In God We Trust' is used by the Treasury Department, and Congress recently added God to the pledge of allegiance. There is Bible reading in the schools of the District of Columbia, and religious instruction is given in the District's National Training School for Boys. Religious organizations are exempt from the federal income tax, and are granted postal privileges. Up to defined limits -- 15 percent of the adjusted gross income of individuals and 5 percent of the net income of corporations -- contributions to religious organizations are deductible for federal income tax purposes. There are no limits to the deductibility of gifts and bequests to religious institutions made under the federal gift and estate tax laws. This list of federal 'aids' could easily be expanded, and, of course, there is a long list in each state."

Fellman, The Limits of Freedom (1959), pp. 40-41.

[Footnote 2/2]

West Point Cadets are required to attend chapel each Sunday. Reg., c. 21, § 2101. The same requirement obtains at the Naval Academy (Reg., c. 9, §0901, (1)(a)), and at the Air Force Academy except First Classmen. Catalogue, 1962-1963, p. 110. And see Honeywell, Chaplains of the United States Army (1958); Jorgensen, The Service of Chaplains to Army Air Units, 1917-1946, Vol. I (1961).

[Footnote 2/3]

The New York Legislature follows the same procedure. See, e.g., Vol. 1, N.Y.Assembly Jour., 184th Sess., 1961, p. 8; Vol. 1, N.Y. Senate Jour., 184th Sess., 1961, p. 5.

[Footnote 2/4]

Rules of the Senate provide that each calendar day's session shall open with prayer. See Rule III, Senate Manual, S.Doc. No. 2, 87th Cong., 1st Sess. The same is true of the Rules of the House. See Rule VII, Rules of the House of Representatives, H.R.Doc. No. 459, 86th Cong., 2d Sess. The Chaplains of the Senate and of the House receive $8,810 annually. See 75 Stat. 320, 324.

[Footnote 2/5]

It would, I assume, make no difference in the present case if a different prayer were said every day or if the ministers of the community rotated, each giving his own prayer. For some of the petitioners in the present case profess no religion.

The Pledge of Allegiance, like the prayer, recognizes the existence of a Supreme Being. Since 1954, it has contained the words "one Nation under God, indivisible, with liberty and justice for all." 36 U.S.C. § 17. The House Report recommending the addition of the words "under God" stated that those words in no way run contrary to the First Amendment, but recognize "only the guidance of God in our national affairs." H.R.Rep. No. 1693, 83d Cong., 2d Sess., p. 3. And see S.Rep. No. 1287, 83d Cong., 2d Sess. Senator Ferguson, who sponsored the measure in the Senate, pointed out that the words "In God We Trust" are over the entrance to the Senate Chamber. 100 Cong.Rec. 6348. He added:

"I have felt that the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic."

"It is true that, under the Constitution, no power is lodged anywhere to establish a religion . This is not an attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God, in whom we sincerely repose our trust. We know that America cannot be defended by guns, planes, and ships alone. Appropriations and expenditures for defense will be of value only if the God under whom 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 Star-Spangled Banner as our national anthem. One stanza of our national anthem is as follows: "

" O, thus be it ever when freemen shall stand"

" Between their lov'd home and the war's desolation,"

" Blest with vict'ry and peace may the heav'n rescued land"

" Praise the power that hath made and preserved us a nation,"

" Then conquer we must when our cause it is just,"

" And this be our motto -- 'In God is our trust.'"

" And the Star-Spangled Banner in triumph shall wave"

" 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.

[Footnote 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 the one hand, and, on the other, what we do and what Congress does in this matter of prayer.

[Footnote 2/7]

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.

[Footnote 2/8]

Some communities 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.

[Footnote 2/9]

Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amendment, provided in Article 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."

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

Page 370 U. S. 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

Page 370 U. S. 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." [Footnote 3/1] Both the Senate and the House of Representatives open their daily Sessions with prayer. [Footnote 3/2] Each of our Presidents, from George Washington to John F. Kennedy, has, upon assuming his Office, asked the protection and help of God. [Footnote 3/3]

Page 370 U. S. 449

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. [Footnote 3/4] One of the stanzas of "The Star-Spangled Banner " made our National Anthem by Act of Congress in 1931, [Footnote 3/5] contains these verses:

"Blest with victory and peace, may the heav'n rescued land"

"Praise the Pow'r that hath made and preserved us a nation,"

"Then conquer we must, when our cause it is just."

"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." [Footnote 3/6] In 1952, Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer. [Footnote 3/7] Since 1865, the words "IN GOD WE TRUST" have been impressed on our coins. [Footnote 3/8]

Page 370 U. S. 450

Countless similar examples could be listed, but there is no need to belabor the obvious. [Footnote 3/9] 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, 343 U. S. 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. [Footnote 3/10]

I dissent.

[Footnote 3/1]

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

[Footnote 3/2]

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 3/3]

For example:

On April 30, 1789, President George Washington said:

". . . 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 tranquillity, 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 divine 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 Jefferson 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. Yet, 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 thousand 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 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."

[Footnote 3/4]

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 3/5]

36 U.S.C. § 170.

[Footnote 3/6]

36 U.S.C. § 172.

[Footnote 3/7]

36 U.S.C. § 185.

[Footnote 3/8]

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 3/9]

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. 370 U. S. 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 3/10]

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."

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