did not cure the fundamental defects involved in the saying of the
Regents’ Prayer. “Petitioners maintain,” they said, “that the saying
of the so-called ‘Regents’ Prayer’ in the schools ... at the direction
of and under the auspices of the Board of Education, violated the
Constitutions of both this State and the United States. They maintain
that the matter of the prayer is not within the cognizance of the
Board and should not have been remanded to respondents for further
action. They do not believe, therefore, that any actions taken by
respondents on remand could have cured the fatal defects in the saying
of the Prayer. Indeed, petitioners submit that any actions taken
by respondents since remand constitute an additional violation or
additional violations of the State and Federal Constitutions.”
On October 17, the Appellate Division refused to disturb Judge Meyer’s
ruling. Four of the judges agreed fully with Meyer’s opinion. Associate
Justice George J. Beldock, however, although in favor of retaining the
school prayer, minced no words in declaring that he did not subscribe
to the lower court’s reasons for denying the petition. In particular,
he found fault with Meyer’s rationale that he was sustaining the
prayer because it was “the accepted practice” before the adoption
of the federal constitution. As far as he was concerned, the prayer
was not religious training and, therefore, was not prohibited by the
Constitution. This, he concluded, is what Judge Meyer should have
stated in no uncertain terms.
On May 25, 1961, Butler, Chandler and Daiker journeyed to Albany to
appear before the Court of Appeals, New York’s highest tribunal. There,
together with attorneys for the Board of Regents and the American
Jewish Committee, they argued the pros and cons of the school prayer
issue. Six weeks later, Chief Judge Charles S. Desmond, speaking for
himself and four of his colleagues, affirmed Meyer’s decision. In a
brief opinion, he stated that a belief in God “has been maintained
without break from the days of the Founding Fathers to the day of the
inauguration of President Kennedy.”
He insisted that the Regents’ Prayer did not in the least infringe on
the rights of minorities. “Belief in a Supreme Being is as essential
and permanent a feature of the American governmental system,” he
emphasized, “as is freedom of worship, equality under the law and due
process of law. Like them it is an American absolute, an application
of the natural beliefs on which the Republic was founded and which in
turn presuppose an Omnipotent Being.” Although he was uncertain as to
the eventual success of the prayer service, he heartily approved of the
motives of both the Regents and the Herricks School Board.
But, for the first time since the case had started its long, tortuous
climb up the judicial ladder, there was a dissent. Two of the seven
judges, Marvin R. Dye and Stanley H. Fuld, agreed with Butler’s
contention that the prayer was unconstitutional. “In sponsoring a
religious program,” they said, “the State enters a field which it has
been thought best to leave to the church alone. However salutary the
underlying purpose of the requirement may be, it nonetheless gives
to the State a direct supervision and influence that overstep the
line making the division between church and state and cannot help but
lead to a gradual erosion of the mighty bulwark erected by the First
Amendment.” For this reason, Dye and Fuld felt that the school board
should have been ordered to discontinue the use of the Regents’ Prayer.
The way was now clear for Butler to ask the United States Supreme Court
to consider the case. On October 4, 1961, he filed a petition for a
_writ of certiorari_, a necessary prerequisite to an appeal. Two months
later, in a brief order, the nine justices granted the writ. Three
years, two months and twenty-five days after the board of the New York
Civil Liberties Union had voted to support Roth, the case, which was
now officially known as No. 468 of the high court’s October Term, 1961,
had finally reached Washington.
Oral arguments in the Supreme Court’s stately first-floor courtroom
took place on April 3, 1962. In addition to the points raised by
Butler, Daiker and Chandler, the attorneys general of seventeen other
states joined Roger Foley, Nevada’s chief legal officer, in a brief
which urged Chief Justice Earl Warren and his eight colleagues to see
to it that “we shall ever remain a religious people” by sustaining the
Regents’ Prayer. The Synagogue Council, the American Jewish Committee,
the Anti-Defamation League of B’nai B’rith and the American Ethical
Union joined Butler in asking for a reversal of the lower court
decisions.
The latter commenced his argument by reciting the Regents’ Prayer.
“What’s wrong with that?” interrupted Justice Harlan. “There’s nothing
wrong with that,” Butler replied. “We have no objection to the prayer
as such. I have come before this court to defend, not attack religion.
Our objection is to the use of public facilities for religious
purposes.”
Frankfurter, who was destined to be disabled by a paralyzing stroke
three days later, broke in. “I want you to be perfectly candid with
me, Mr. Butler,” he piped. “Do you think the public school system
should be secularized?” The lawyer thought for a moment. “Yes, I do,”
he responded, “because, on balance, the threat to religious freedom is
so great that I would rather have secularization than the state in the
business of religion.”
Justice Brennan had one question. Did Mr. Butler think that there was
any distinction between teaching religion and teaching about religion?
He did. “The first is objectionable,” he said. “The second is the duty
of the state.” Potter Stewart asked whether there was any difference
between the prayer and the Salute to the Flag. Butler didn’t hesitate.
“There certainly is,” he replied. “The prayer is a religious utterance
and the salute a political one.”
During Daiker’s presentation, Warren wanted to know whether the school
board’s attorney considered the Regents’ Prayer a religious exercise.
“No, I do not,” the lawyer replied. “It is merely an expression of the
spiritual heritage of our nation, that the Founding Fathers believed
in God.” The Chief Justice smiled. “I would expect you to take that
position,” he commented wryly. Black had one question for Chandler.
Would he have any objection to the prayer had it been a Mohammedan
one? “I would, your Honor,” he answered. “A Mohammedan prayer does not
reflect the spiritual heritage of this country.”
Monday, June 25, 1962, was the last decision day before the Supreme
Court adjourned for the summer. It also marked the end of Associate
Justice Hugo L. Black’s twenty-fifth consecutive term of court. In
a brief ceremony before attending to his crowded calendar, Warren
commended Black for his long service. “Of the ninety-seven justices
who have been appointed to the court,” he observed, “only sixteen have
served as long as Mr. Justice Black and none with greater fidelity
or singleness of purpose. His unflagging devotion has been to the
Constitution of the United States.” Black, who apparently had not been
informed in advance of the intended tribute, slumped in his seat as the
Chief Justice spoke.
The prayer ruling was the first of seventeen to be announced by the
court. Authored by Black, the fifteen-page majority opinion came to
the conclusion that New York’s use of the public school system to
encourage recitation of the Regents’ Prayer was “wholly inconsistent”
with the First Amendment’s stricture against any law “respecting an
establishment of religion.” “The constitutional prohibition against law
respecting an establishment of religion,” Black wrote, “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.”
Accordingly, the judgment of the Court of Appeals was reversed by a
vote of six to one.[2]
[2] Justices Frankfurter and White took no part in the decision, the
former being ill and the latter having just been named to the court by
President Kennedy.
His opinion finished, Black looked up from the papers in front of him.
“The prayer of each man from his soul,” he said in a low voice, “must
be his and his alone. That is the genius of the First Amendment. If
there is any one thing in the First Amendment, it is that the right
of the people to pray in their own way is not to be controlled by the
election returns.”
As the reporters rushed for the telephones in their basement press
room, Justice William O. Douglas began reading portions of a concurring
opinion which, while wholly in favor of the case’s result, went much
further than Black. As Douglas saw it, the Constitution prohibited
any form of “religion-financing” by government. This would include
chaplains in the armed forces, compulsory chapel at West Point and
Annapolis, federal or state aid to parochial schools, the use of the
Bible to administer oaths and the inclusion of God in the Pledge of
Allegiance. “Our system at the federal and state levels is presently
honeycombed with such financing,” he said. “Nevertheless, I think it is
an unconstitutional undertaking whatever form it takes.”
He wanted it clearly understood that his reasoning did not stem
from any hostility toward religion. “The First Amendment leaves
the government in a position not of hostility to religion but of
neutrality,” he explained. “The philosophy is that the atheist or
agnostic--the non-believer--is entitled to go his own way. The
philosophy is that if government interferes in matters spiritual, it
will be a decisive force. The First Amendment teaches that a government
neutral in the field of religion better serves all religious interests.”
Mr. Justice Stewart was the only member of the court to voice a
dissent. “I think the Court has misapplied a great constitutional
principle,” he declared. “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.” His brief opinion ended
with the observation that the patriots who signed the Declaration of
Independence did so with a self-styled “reliance on the Protection of
Divine Providence.”
The majority decision caused an immediate reaction. George Andrews, an
outraged Alabama Congressman, complained that “they put the Negroes in
the schools and now they’ve driven God out.” New York’s Governor Nelson
Rockefeller, who apparently hadn’t read or understood Black’s opinion,
hoped that “adjustments” could be worked out that would make the prayer
acceptable to the Supreme Court. Francis Cardinal Spellman was “shocked
and frightened that the Supreme Court has declared unconstitutional
a simple and voluntary declaration of belief in God by public school
children.” On the west coast, James Francis Cardinal McIntyre, the
Archbishop of Los Angeles, called the decision “positively shocking and
scandalizing to one of American blood and principle.”
Evangelist Billy Graham was “shocked and disappointed” by what he
called “another step toward secularism in the United States.” Right
Reverend James A. Pike, Bishop of the Protestant Episcopal Diocese of
California and a lawyer himself, said that he was surprised to see that
the Warren Court had extended “to an obviously non-sectarian prayer
the prohibition against ‘the establishment of religion,’ clearly
intended by our forefathers to bar official status to any particular
denomination or sect.” Representative John Bell Williams of Mississippi
called the decision part of “a deliberate and carefully planned
conspiracy to substitute materialism for spiritual values.” To Senator
Herman E. Talmadge of Georgia, it was “an outrageous edict which has
numbed the conscience and shocked the highest sensibilities of the
nation.” The Alabama legislature quickly passed a resolution terming it
“diabolical.”
Herbert Hoover and many other prominent Americans demanded an immediate
amendment to the Constitution nullifying the prohibition against
the prayer. “The Congress should at once submit an amendment which
establishes the right to religious devotion in all governmental
agencies,” the former President said angrily. Representative Roy A.
Taylor of North Carolina, a Baptist deacon, complied at once. His
proposed amendment was as definite as it was brief. “Notwithstanding
the First and Fourteenth Amendments to the Constitution of the United
States,” it read, “prayers may be offered and the Bible may be read in
connection with the program of any public school in the United States.”
Senator James O. Eastland announced that the Senate Judiciary Committee
would meet at once to consider proposed amendments.
But the decision was not without its supporters. Dr. Sterling M.
McMarrin, United States Commissioner of Education, felt that the
outlawing of the prayer was no loss to religion. “Prayer that is
essentially a ceremonial classroom function,” he explained, “has not
much religious value.” Dr. Edgar Fuller, Executive Secretary of the
Council of Chief State School Officers, stated that, “in my judgment,
the Supreme Court is right.” Senator Jacob K. Javits of New York
reminded parents that there was “plenty of opportunity to inculcate
religious faith in the children at home and at weekend religious
schools.” Rev. Dr. Dana McLean Greeley, president of the Unitarian
Universalist Association, said that “the Supreme Court has acted
clearly in support of the principle of the separation of church and
state as guaranteed by the First Amendment of the Constitution.”
In Chicago, Dean M. Kelly, director of the National Council of
Churches’ Department of Religious Liberty, was enthusiastic about the
court’s action. “Many Christians,” he claimed, “will welcome this
decision. It protects the religious rights of minorities and guards
against the development of ‘public school religions’ which is neither
Christianity nor Judaism, but something less than either.” At his press
conference on June 27, President Kennedy said that he hoped that the
decision would come as “a welcome reminder to every American family
that we can pray a good deal more at home, we can attend our churches
with a good deal more fidelity, and we can make the true meaning of
prayer much more important in the lives of all of our children.”
In their own area, the victorious plaintiffs were disconcerted by the
violence of the attack on the decision. Representative Frank J. Backer,
a Nassau County Congressman, called it “the most tragic in the history
of the United States.” William A. Bruno, a trustee of the nearby
Hicksville Board of Education, said that his district would retain
the prayer. “Let’s see what the Supreme Court will do about that!” he
chortled. He told a reporter for The New York Times that the ruling
proved that Robert Welch, the founder of the Birch Society, “had the
right idea in asking for the impeachment of the Supreme Court.” Robert
S. Hoshino, President of the mammoth Levittown School District, called
the decision a victory for Communism. “Levittown will not vote out the
Regents’ Prayer,” he prophesized. However, Dr. James E. Allen, Jr., the
State’s Commissioner of Education, reminded recalcitrant local school
boards that they would “have to enforce the Supreme Court decision
immediately.”
Although they were bitterly disappointed by the case’s outcome, both
Vitale and Daiker indicated that the Herricks School Board would not
disobey the Supreme Court’s mandate. The former felt certain “that any
of the people involved are prepared to adhere to the decision of the
Court.” According to the lawyer, “the decision must be complied with.”
Each man stressed the fact that no child had been forced to recite the
prayer against its will. “At no time did we ever insist that a child
should say it,” Vitale declared. “We set up procedures so no one would
be compelled to say it and we felt sincerely we were not infringing on
anyone’s constitutional rights.”
The plaintiffs were quietly jubilant over their triumph which the New
York Civil Liberties Union called a “milestone” in the separation of
church and state. Lenore Lyons said that the decision represented “both
liberal and conservative thinking of the Supreme Court.” Engel, Lerner
and Lichtenstein were “extremely happy.” Lawrence Roth, who referred
to himself as “a very religious person but not a churchgoer,” viewed
the case’s result as an indication of his conviction that “religious
training is the prerogative of parents and not the duty of the state.”
Butler claimed that the decision had helped rather than hindered
religion. “In this country, with its many different faiths, religion
has flourished because we have steadfastly adhered to the principle of
separation of church and state,” he said. “The Supreme Court has today
reaffirmed that principle.”
With the case over, Roth and his co-plaintiffs revealed that, since
1959, they had been subjected to a variety of community pressures,
ranging from dirty looks to abusive telephone calls. In one house, the
latter had become so vituperative that the children were forbidden to
answer the phone. Many of the anonymous letters and postcards that had
arrived regularly at each of the five homes were obscene, anti-Semitic
or both. “Toward the end, it got so bad,” Roth said, “that my wife or I
made it a point of getting the mail before the children could see it.”
Roth’s oldest son, Danny, who was now sixteen, said that his father’s
leadership of the anti-prayer fight had made it very difficult for him
at school. “There were arguments and pushing and name-calling,” he
recalled. “In the halls, kids would yell out: ‘You’re a Commie’ or ‘Go
home to Russia.’ At times I thought it might be easier for me if my
father stopped what he was doing. But I never wanted him to. I believe
very strongly that what he was doing was right. I’m very proud of my
father, you know.”
The court’s decision heightened the bitter campaign against the
plaintiffs. Not only did the number of vituperative telephone calls,
letters and post cards increase, but Roth’s house was picketed by nine
members of the newly formed Nationalist Party bearing signs which read:
FBI, INVESTIGATE MR. ROTH! and IMPEACH THE PRO-RED SUPREME COURT. “The
harassing phone calls got so bad Tuesday night,” Roth said, “that we
finally had to take the receiver off the hook again. They were coming
in at the rate of two calls a minute.” The anonymous callers shouted
such threats as “Watch out for your child.... We’re going to blow up
your car.... Don’t leave your house--something is going to happen to
it.... We’ll get you.” One postcard was typical. “To the five Long
Island parents,” it began. “You damn Jews with your liberal viewpoint
are ruining the country.”
In addition, at least one candidate in the New York primary campaigns
that began shortly after the decision, in an openly anti-Semitic appeal
to Roman Catholic voters in Queens County’s Eleventh Assembly District,
reminded them that the school prayer had been invalidated by persons
with Jewish names. “These are the names you should know,” began a
leaflet distributed by James E. McGinniss, an Independent Democrat,
“Stephen Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and
Lawrence Roth. These people brought the legal action which resulted
in the banning of the ‘prayer’ in our public schools.” Mr. McGinniss
then urged registered Democrats to vote for him “if you want a public
official who will remember the ‘Presence of God’ and who will sponsor
and work for laws which will permit us to live and raise our children
as God-fearing citizens.”[3]
[3] Mr. McGinniss was soundly defeated in the primary, running a poor
third to winner Hyman J. Greenberg.
A week before the distribution of McGinniss’ fliers, the Jesuit
magazine _America_ chimed in with a warning “to our Jewish friends.”
In an outspoken editorial, the weekly reminded American Jewry that,
although it could not be held fully responsible for the school
prayer decision, its leaders would be well advised to curb the
activities of certain Jewish agencies which, the magazine claimed,
hoped to secularize public life from top to bottom. “It would be most
unfortunate,” the editorial concluded, “if the entire Jewish community
were to be blamed for the unrelenting pressure tactics of a small but
overly vocal segment within it. When court victories produce only a
harvest of fear and distrust, will it all have been worthwhile?”
The Regents’ Prayer is no longer recited in the Herricks school
system--or, for that matter, anywhere else in New York State. But it
will be a long time before the five people whose efforts led to its
invalidation will be permitted to forget that they ran counter to the
strong feelings of their community. “Mr. Rundquist warned me of what
we could expect,” Roth acknowledged wryly, “but we never realized how
bitter the attacks on us and our families would be. But none of us are
sorry that we became involved in the case. We all feel that we have had
a small part in clarifying and strengthening a vital constitutional
safeguard.[4] For this, we were more than willing to endure whatever
came our way.”
[4] More clarification is in the offing. On October 8, 1962, the
Supreme Court agreed to pass on the constitutionality of another type
of school prayer. It will shortly hear argument on the validity of
a regulation of the Baltimore (Md.) School Board and a Pennsylvania
statute, both of which require the reading of verses from the Bible at
the opening of each school day.
Bibliography
In addition to available trial transcripts, records on appeal, and
magazine and newspaper articles, the following books were consulted:
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1950
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1950
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McCarthy and His Enemies, by William F. Buckley, Jr. and L. Brent
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