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:
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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)