Guest Essayist: Joseph Knippenberg

In Engel v. Vitale (370 U.S. 421 [1962]), the Supreme Court took up the question of school prayer and rejected as unconstitutional the New York state practice of beginning each school day with the recitation of the Regent’s Prayer.  It was the first of a series of decisions regarding public prayer that included rejecting recitation of the Lord’s Prayer and the reading of bible verses in schools (Abingdon v. Schempp [1963]), rejecting invocations and benedictions at public school graduation ceremonies (Lee v. Weisman [1992]), rejecting student-led prayer at high school football games (Santa Fe Independent School District v. Doe [2000]), implicitly and conditionally upholding a moment of silence at the beginning of the school day (Wallace v. Jaffree [1985]), and upholding prayer at legislative and other public meetings (Marsh v. Chambers [1983] and Town of Greece v. Galloway [2014]).  While the Court’s doctrine has developed over time—above all, in explicitly distinguishing prayer in schools from prayer in other public settings—many of the issues and many of the problems in its jurisprudence were already evident in this first case.

At stake in Engel is a local school district’s adoption of a prayer recommended by the New York State Board of Regents: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”  In an opinion written by Justice Hugo Black, the Court, by a 6-1 majority, struck down this practice as “wholly inconsistent with the Establishment Clause,” even though students are not required to participate in the teacher-led prayer and could indeed be excused from the classroom during its recitation.  (These, by the way, are the kinds of accommodations typically offered to students who, on First Amendment grounds, do not wish to recite the Pledge of Allegiance.)

According to Black’s opinion, the principal problem here is that the Regent’s Prayer was composed by the Regents:  “[W]e 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 part of a religious program carried on by the government.”  Because the facts of the case do not permit it, the Court cannot address the question of prayers not composed by the government recited in such settings.

To be sure, one could respond to Black that since there is no coercion involved here, no compulsion that anyone actually participate in the recitation of the prayer, this practice cannot amount to an establishment of religion.  After all, one of the hallmarks of traditional establishment was just that compulsion, with fines or other punishments and civil disabilities applied to religious non-conformists.  Black, however, denies that establishment requires compulsion.  “The Establishment Clause,” he says, “is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.”  Stated more simply, the Establishment Clause is violated by the establishment of an official religion.  That certainly in Black’s mind happens when government officials compose a prayer, regardless of how “nondenominational” its words are or how voluntary its recitation is.  The path from his opinion to objections to the phrases “under God” in the Pledge of Allegiance and “In God we trust” on American currency is quite short and direct.

In addition, Black suggests that whenever government puts the weight of its authority behind any religious utterance, a certain kind of pressure is sure to follow: “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,” so plain, it seems, as not to require any evidence or argument.  Again, the path from this assertion to the ”endorsement test,” first articulated in Sandra Day O’Connor’s concurrence in Lynch v. Donnelly (1984), as well as to objections to presidential proclamations of thanksgiving and participation in prayer breakfasts and to public recognition and accommodation of religious holidays is quite short and direct.

There is perhaps no better summary of the open-ended and ultimately problematical character of Black’s understanding of the Establishment Clause than these words: “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….”  The meaning of power and its uses are tolerably clear: government can reward with money or privileges actions that it favors and punish actions that it disfavors.  But the meaning of prestige is a good bit more nebulous; we are in the realm of symbolism and amorphous, not to say subjective, psychological influence.  The verbs “control, support or influence” also contain a multitude of meanings.  Power can surely be used to attempt, at least, to control, perhaps dictating certain forms of worship and prohibiting others.  Power can also be used to support, as when money flows from the treasury into the coffers of a church or faith-based organization.  All these uses of power seem to follow pretty closely from the traditional understanding of religious establishment.  As noted above, however, the conjunction of prestige and influence takes us into another realm altogether.  When a president ends his speech by asking God to bless America, is he using the prestige of his office to influence people?  When a session of the Supreme Court opens, as both Justices Douglas (concurring) and Stewart (dissenting) note, with the words “God save the United States and this Honorable Court,” is this prayer (for that is literally what it is) taking advantage of the prestige of the Court to influence all who pay attention to it?  We have here the foundations of all the secularizing jurisprudence and legal argumentation that has occupied the federal courts in the past more than fifty years.

I will conclude by briefly examining the historical argument Justice Black uses to buttress his understanding of the Establishment Clause.  To begin with, he supports his criticism of the governmental composition of the Regent’s Prayer by recurring to the English experience with the Book of Common Prayer, disputes over the contents of which “threatened to disrupt the peace of that country….”  This is what led many to flee England for the colonies, where (“an unfortunate fact of history,” he notes) they frequently reproduced the very religious establishment they had left behind.  Of course, this history by itself does not teach us anything about the Regent’s Prayer, for the element of coercion is omnipresent in the one and only questionably present (if one is persuaded by the influence argument) in the other.

When he turns explicitly to the American history, Black relies very heavily on the Virginia experience, where the battle over establishment pitted James Madison and Thomas Jefferson, on one side, against Patrick Henry and John Marshall, on the other.  Quoting extensively from Madison’s Memorial and Remonstrance, he suggests that those arguments illuminate the meaning of the Establishment Clause.  One problem, of course, is that the clause prohibits the establishment of a national religion, leaving entirely intact state establishments.  Indeed, as Professor Steven D. Smith has persuasively argued, the Establishment Clause was intended not to disestablish any church anywhere, but simply to preserve state arrangements from any sort of federal interference.  While Madison and Jefferson might as individuals agree with Black, it is not at all clear that the members of Congress who voted for the Bill of Rights and those in the state legislatures who voted to ratify those amendments believed that they were doing anything other than preventing the federal government from establishing—in the old fashioned sense, with some sort of real coercion—a national religion.  In fact, the very same Congress that proposed the Bill of Rights to the states repassed the Northwest Ordinance, which asserted, first, that “the fundamental principles of civil and religious liberty…form the basis whereon these republics, their laws and constitutions are erected,” second, that “[n]o person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory,” and, third, that”[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”  In other words, that first Congress understood the principles of religious liberty to be perfectly consistent—contra Madison and Black—with public support for religion in the schools.

In his lone dissent, Justice Potter Stewart insists that

“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.”

Adhering to the traditional understanding of establishment, he suggests that the majority’s much more expansive reading of that clause runs the risk of abandoning our history and our heritage.  It certainly opened the door to a lot more litigation, as plaintiffs challenged—sometimes successfully and sometimes unsuccessfully—occasions on which the people, in public, acknowledged their religion.

Perhaps it is time for us—informed by a more complete and more nuanced understanding of our religious, political, and constitutional heritage—to revisit these issues in such a way as to permit communities to come to their own understandings of how they wish to express and accommodate the people’s religion or religions.

Engel v. Vitale (1962) Supreme Court decision:

Everson v. Ewing (1962) Supreme Court decision:

Joseph M. Knippenberg is a professor of politics at Oglethorpe University

4 replies
  1. Barb Zack
    Barb Zack says:

    Today’s ACLU and other liberals have taken the 1st Amendment Establishment cause to the extreme. Recently, our City received a request from an atheist group to give an invocation to open one of our City Council meeting.. One of the cases they cited (in favor of their giving the invocation) was Town of Greece V Galloway (2014). I researched this case and others and concluded that as offensive as many found this group, they did have the right to request an invocation, because our City had the practice of allowing a member of the religious community to open each meeting with a prayer. People in our City were deeply divided about this, many not wanting this group to give the invocation at all; some planned to protest by walking out of the meeting during the invocation. Personally, I managed to talk several people into doing what I did. I certainly was not going to allow a group to chase me from a meeting I had a right to be at. So during the invocation, I sat, with my Bible raised over my head, and prayed silently.

    This whole issue is such a thorny one, and the reading of the First Amendment begins with “Congress shall no law respecting an establishment of religion…” We have banished God from so much of our Country it is indeed shameful.

    Thank you Professor Knippenberg for an excellent and insightful essay.

    • Joseph M. Knippenberg
      Joseph M. Knippenberg says:

      You’re absolutely right. Religious freedom means freedom for everyone, whether we agree with them or not. Thus we can’t exclude a group from offering an invocation at a public meeting because its members constitute a minority in the community or because we don’t like them.

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for another excellent, poignant essay.

    1. I’m thankful CA fro allowing me to quote the bible!

    2. Agree 100% religious freedom is freedom for everyone to practice as they see fit, even if, like speech, misguided or even distasteful.

    3. Let the atheist and others invoke their prayer. “wisdom is justified by her children.”

    3. D. James Kennedy documented clearly in America’s Christian Heritage that The phrase “separation of church and State” originates from one letter written by T. Jefferson. Apparently he did not expand nor propagate the phrase or concept. He, along with other Founders wrote that a Government by the People needed Divine guidance. it is notable he sanctioned church services in USGov buildings – I believe White House or Capital. As with many ideas, TJ said one thing, but practiced another.

    4. I support wholly the 1st Amendment’s “hands off” restriction of the State. The problem of Black’s argument is it infringes right to Freedom of speech. Today that infringement is becoming openly antagonistic against Christian speech. I can quote Confucius, Taoist writers, secular or Atheist proponents, at any venue. But I am likely to be silenced or violently protested against or threatened if I espouse Biblical ideas or quote Jesus.

    5. To paraphrase, “I know all the things you do, and that you have a reputation for arguing a living Constitution —but your decisions are killing it. Wake up! Strengthen what little remains, for even what is left is almost dead. I find that your decisions do not meet the requirements of “defend the Constitution.” Go back to what was said and believed at first; hold to it firmly. Repent and turn to a literal Constitution. If you don’t wake up, like the Roman Empire, ruination will come to you suddenly, as unexpected as a thief.”



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