Military Chaplains - A Constitutionally Permissible Accommodation Between Church and State

Maryland Law Review, Dec 1964

By M. Albert Figinski, Published on 01/01/64

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Military Chaplains - A Constitutionally Permissible Accommodation Between Church and State

Militar y Chaplains - A Constitutionally Permissible Accommodation Between Church and State M. Albert Figinski 0 0 M. A. Figinski, Military Chaplains - A Constitutionally Permissible Accommodation Between Church and State , 24 Md. L. Rev. 377 (1964) Available at: - VOLUME XXIV FALL, 1964 NUMBER 4 By M. ALBERT FIGINSKI* I. ENGEL; SCHEMPP-MURRAY; JUSTICE BRENNAN TAKES A STAND When the Supreme Court held unconstitutional, in Engel v. Vitale,' a local New York school board requirement that each school day be opened with the recitation of a prayer, authored by the State Board of Regents, by students who, if they had taken affirmative action, could have been excused from this ritual, vehement disapproval and harsh accusations were heard throughout the country.' As time progressed and tempers soothed, disagreement, as well as approval, flowed forth from the more usual commentators on constitutional decisions.3 The sources of disapproval, whether reasoned or flamboyant, expressed fears that the language and approach used by Justice Black in Engel and the willingness of the Court to intercede in these matters would have the pervasive effect of eliminating many religious references and practices which theretofore had been long sanctioned by American governments on both the state and Federal level. The only balm the Court had offered in Engel was footnote 21, which appeared as an appendage to what seem* B.A., 1959, Johns Hopkins University, 1959 (political science); LL.B., 1962, University of Maryland School of Law, 1962; Casenote Editor, Maryland Law Review, 1961-62; Member, Maryland Bar. 1370 U.S. 421 (1962). 2 A catalogue of the attacks voiced is found in Editorial, Religion Spon8ored by the State, 4 J. CHURcH & STATE 141, 142 (1962). See also N.Y.L.J., April 16, 1964, p. 1, col. 4. , The Engel case was widely reviewed by the legal periodicals. Perhaps the most bitter intellectual criticism was Griswold, Absolute 18 in the Dark - A Discussion of the Approach of the Supreme Court to Constitutional Questions, 8 UTAH L. REv. 167 (1963). See also Kurland, The Regents' Prayer Case: "Full of Sound and Fury, Signifying . .. ", 1962 Sup. CT. REV. 1. Pfeffer, The New York Regents' Prayer Case, 4 J. CHURCH & STATE 150, 158 (1962) is an ardent argument in favor of the Engel decision. ingly was an attempt by the Court to answer any assertion that its decision was anti-religious.4 Footnote 21 rejected the assertion that the ruling necessarily forbade classroom recitation of historical documents or our National Anthem when 5they contained references to a Deity or a Supreme Being. If this footnote was the only verbiage that soothed fears of a pervasive sweep of religion out of our public life, there were several causes for alarm. Foremost was the factual context of the case, i.e., the non-denominational content of the prayer and the non-compulsory attendance at the recitation. Secondly, the entire presentation of the Court implied an absolutist approach which displayed a judicial fear that any concession to religion or the religious character of our people' was tantamount to sanctioning a small leak in a large dam, which confined a restlessness to break forth on a rampage of European-style Establishment of a Church.' A third cause for alarm was Justice Douglas' concurring opinion which saw as the true constitutional evil, not the governmental writing of a prayer," but the financial aid' the state rendered a religious exercise by allowing the praying to be led by a person on the public payroll.10 With its performance in Engel and the reaction thereto serving as recent history, the Court was faced in its next Term with the practice of Bible-reading in the opening exercises of the public schools of Baltimore City and Pennsylvania. Again, non-conforming students could be excused from attendance at the exercises. However, the Court held I Engel v. Vitale, 370 U.S. 421, 435 (1962): "It is neither sacrilegious nor antireligious 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." Id. at 435, n. 21. 6 Zorach v. Clauson, 343 U.S. 306, 313 (1952). See NIEBUHR, PIOUS AND SECULAR AHIERICA (1958). 7The EngeZ opinion of Justice Black can also be read narrowly as strictly limited to the issue in the case. This being so, one wonders whether much of the uproar that followed the announcement of the decision would have resulted if the opinion had stopped at p. 425. 1 This was the essence of the constitutional evil according to the majority. Engel v. Vitale, 370 U.S. 421, 425, 429 (1962). o Cf. an opinion by the Attorney General of the State of Maryland indicating no Federal constitutional bar to a county allowing a local Catholic parochial school, at its own expense, to tie into the closed circuit educational television syst (...truncated)


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M. Albert Figinski. Military Chaplains - A Constitutionally Permissible Accommodation Between Church and State, Maryland Law Review, 1964, pp. 377, Volume 24, Issue 4,