Engel v. Vitale/Dissent Stewart

by Potter Stewart

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 [p445] 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 [p446] be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government.

At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall, our Crier has said, "God save the United States and this Honorable Court." ^[1] Both the Senate and the House of Representatives open their daily Sessions with prayer. ^[2] Each of our Presidents, from George Washington to John F. Kennedy, has, upon assuming his Office, asked the protection and help of God. ^[3] [p449]

The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion. ^[4] One of the stanzas of "The Star-Spangled Banner " made our National Anthem by Act of Congress in 1931, ^[5] contains these verses:

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." ^[6] In 1952, Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer. ^[7] Since 1865, the words "IN GOD WE TRUST" have been impressed on our coins. ^[8] [p450]

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

I do not believe that this Court, or the Congress, or the President has, by the actions and practices I have mentioned, established an "official religion" in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation — traditions which come down to us from those who almost two hundred years ago avowed their "firm Reliance on the Protection of divine Providence" when they proclaimed the freedom and independence of this brave new world. ^[10]

I dissent.

Footnotes

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

↑ . 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.

↑ . 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.

↑ . 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.

↑ . 36 U.S.C. § 170.

↑ . 36 U.S.C. § 172.

↑ . 36 U.S.C. § 185.

↑ . 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.

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

↑ . 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.