Note: A Daily Prayer for Public Schools
Note: A Daily Prayer for Public Schools
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Follow this and additional works at: http://scholarship.law.stjohns.edu/tcl Part of the First Amendment Commons, and the Fourteenth Amendment Commons Recommended Citation
judicial determination. 5 If Sunday closing
legislation is a dying relic of the past, it
now appears that it will have to die where
it was born - in the state legislatures.
NOTE: A DAILY PRAYER FOR
Ever since the Supreme Court stated
that our Constitution provides for "a wall
of separation between church and State"1
the courts have been faced with the delicate
prob!em of establishing boundaries. In
facing this issue recently, Chief Judge
Desmond wrote for the New York Court of
Appeals, in Engel v. Vitale,2 that "there
is no problem of constitutionality"5 in
allowing public, school teachers to offer the
following daily prayer, recommended by
the New York State Board of Regents to
local school authorities:
Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy
bless-ings upon us, our parents, our teachers and
The establishment and free exercise
clauses of the first amendment, which
petitioners claimed prohibited the Regents
Prayer, have proven standard weapons in
the arsenals of all opponents of prayer,
85 See State v. Kidd, 167 Ohio St. 521, 150 N.E.2d
413 (1958). "Whether in this fast-moving modern
age the Sunday closing law is outmoded, obsolete
and unrealistic and should be eradicated is
essentially a legislative and not a judicial problem."
Id. at -, 150 N.E.2d at 419.
1 Reynolds v. United States, 98 U.S. 145, 164
2 Engel v. Vitale, 10 N.Y.2d 174, 176 N.E.2d
579, 218 N.Y.S.2d 659 (1961).
3Id. at 182, 176 N.E.2d at 582, 218 N.Y.S.2d
4 Id. at 179, 176 N.E.2d at 580, 218 N.Y.S.2d
Bible reading, singing of hymns, early
release programs, wearing of religious garb
by teachers, and similar controversial
school board action. Thus far, the Supreme
Court has remained silent on the
constitutionality of these acts as performed within
the public schools.5 Certiorari, however,
was requested in the present case. A
decision by that Court on Engel v. Vitale, a
case which raises the very essence of the
constitutional issues involved, is likely to
play a significant role in establishing the
future relationship between Church and
The purpose of this note is first, to
explore the position other jurisdictions have
assumed in prayer recitation, Bible
reading (the most common fact pattern giving
rise to these issues) and other situations,
and secondly, to divine from the most allied
of Supreme Court decisions the course that
Court may be expected to follow when
confronted with Engel v. Vitale.
Attitudes of the Several States
Noncompulsory prayers offered in the
presence of school children have for many
years survived cries of unconstitutionality
in most jurisdictions. In a Kentucky case,6
for example, decided just after the turn of
the century, the court's opinion clearly
in5 See Doremus v. Board of Educ., 342 U.S. 429
(1952), in which the petitioners attempted to
have declared as invalid a statute allowing daily
readings from the Old Testament. One of the
petitioners relied on the injury to his interest as a
taxpayer and the second sued as the parent of a
public school child. As to the first, the Court held
there was no case or controversy because the
facts were insufficient to support a claim of
injuries to financial interest; as to the second
petitioner, the Court ruled that the question was moot
since the child had graduated. .
6 Hackett v. Brooksville Graded School Dist., 120
Ky. 608, 87 S.W. 792 (1905).
dicates that as far as that forum was
concerned the crux of the question was
not the delivery of a prayer, but whether
or not the particular prayer was sectarian.
The court found it unreasonable to believe
that the legislature could have meant to
exclude prayers taken from the Bible when
it ratified its state constitution:
Though it be conceded that any prayer is
worship, and that public prayer is public
worship, still appellant's children were not
compelled to attend .. .during the prayer.
The school was not "a place of worship,"
nor are ittseachers "ministers of religion,"
within the contemplation of... [Kentucky's]
Constitution, although a prayer may be
offered incidentally at the opening of the
school by a teacher. 7
A decade later a Wisconsin courts adopted
the same attitude in dealing with prayers
given by both Protestant and Catholic
ministers at graduation exercises. The court
held the prayer to be "a mere incident,
which occupies but a few moments. . .9
during the course of a gathering which was
not for the purpose of worship.
Sectarianism may be an issue whether
or not given prayers are called
nonsectarian or nondenominational by proponents.
In the area of Bible reading, sectarianism
often becomes the decisive consideration.
Where the courts have found prayers or
the Bible to be sectarian, recitations and
readings have been held unconstitutional.10
But the majority position is that the King
James version, used by most Protestants, is
7Id. at-,87 S.W. at 793.
s State ex rel. Conway v.District Bd. of Joint
School Dist., 162 Wis.482, 156 N.W.477 (1916).
9Id. at-, 156 N.W. at 481.
10 See People ex rel. Ring v.Board of Educ., 245
Il1. 334, 92 N.E. 251 (1910); Herold v.Parish
Bd. of School Directors, 136 La. 1034, 68 So. 116
(1915). But see State ex rel. Conway v.District
Bd. of Joint School Dist., supra note 8.
not sectarian within the meaning of state
laws, and consequently prayers and
readings taken from it are not in violation of
establishment clauses. In keeping with this
view, California held the King James
version might be left in school libraries even
though statutes of that jurisdiction
demanded the exclusion from schools of all
sectarian or partisan religious literature.11
Rejecting the argument that the acquisition
of a Bible would appear to be public school
ratification of that edition, 12 the court
concluded that the statute was not intended
to apply to religious books as such, but
only those which specifically advanced the
ideas of one sect over those of another. The
Bible, on the other hand, in either the
King James or Douay versions, was held
to be so generally accepted as not to be
sectarian. Similarly, the Koran or Talmud
could also be acquired by the school.
The conclusion reached by the
California court echoed a sentiment expressed
three-quarters of a century earlier in
another forum. Donahoe v. Richards,13
decided in 1854, was a suit for damages
allegedly suffered when a child was
expelled for refusing either to take part in
Bible readings or to bring a note from
home requesting she be excused. The court
summarily decided that Bible readings as
such were not prohibited by the
constitution and turned to the question of whether
or not use of a particular text constituted
affirmation of a religion. It found that Bible
reading was no more a confirmation of
religion by the school than reading
mythology would be. Since the petitioner did not
11 Evans v. Selma Union High School Dist., 193
Cal. 54, 222 Pac. 801 (1924) (per curiam).
12 But cf. Tudor v. Board of Educ., 14 N.J. 31,
100 A.2d 857 (1953).
13 38 Me. 379, 61 Am. Dec. 256 (1854).
argue against the Bible itself but merely the
version, to allow her to negate what the
school authorities had decided as most
expedient would be to subordinate another
version to the one she chose, and thus
inflict on others the mischief she
Thus, it is the definition of sectarianism
applied by the local court which becomes
decisive rather than the introduction of a
Bible as such into the public schools.
Where states have taken the position that
the Bible in any form cannot be anything
but sectarian, it follows automatically that
it cannot be read in classrooms. In Ring v.
Board of Educ.,15 the court so ruled,
saying that although differences in doctrine
may seem unimportant to one individual
they may not to another; Catholicism and
Protestantism are two different sects and
therefore the Protestant King James
translation must be sectarian.
Although the Ring opinion is strong, the
element of compulsion which was present
appears to have played a major role in
the decision.16 The children were required
to listen to readings from the King James
version, the Lord's Prayer of that edition,
and the singing of hymns. Students were
also told to rise at various times, fold their
hands, bow, and perform other acts of a
14 Id. at 407-08, 61 Am. Dec. at 270.
t5 People ex rel. Ring v. Board of Educ., 245 II.
334, 92 N.E. 251 (1910).
16 Id. at -, 92 N.E. at 252. Where the
compulsion is eliminated in a similar fact situation it has
been held by the Texas Supreme Court that
reading from the King James Bible, saying prayers
and singing hymns, so long as nonsectarian, may
be permitted in the classrooms. The court argued
that those not favoring a religious society have no
right to deny others who choose to hear, the
privilege of instruction in public school of the moral
truths in the Bible. Church v. Bullock, 104 Tex. 1,
109 S.W. 115 (1908).
similar nature. In considering the sum of
tlhe acts required by students the court
said: "If these exercises . . . were
performed in a church there would be no
doubt of their religious character, and that
character is not changed by the place of
their performance."1 7
However, in Louisiana the court applied
a more constrained definition and found
the King James version sectarian, not as to
Catholics but as to Jewish believers. The
action was instituted by petitioners of both
named religions but the court decided that
because the teaching was basically
Christian, to be subject to readings from the New
Testament is a form of discrimination
against non-Christians only. In holding that
reading of the Bible, even without
comment, is unconstitutional, the court said,
"It is a fact that the reading of the Bible
is religious instruction, and that when the
New Testament is read it is Christian
Notwithstanding the Illinois and
Louisiana views on sectarianism, reading of the
King James version has been ruled
constitutional more often than not.19 New
17 People ex rel. Ring v. Board of Educ., supra
note 15 at-, 92 N.E. at 252. The court went on
to say: "The reading of the Bible in school is
instruction. . . . [Pupils] cannot hear the
Scriptures read without being instructed as to the
divinity of Jesus Christ, the Trinity, the
Resurrection, baptism, predestination, a future state of
punishments and rewards, the authority of the
priesthood, the obligation and effect of the
sacraments, and many other doctrines about which the
various sects do not agree .... Any instruction on
any one of the subjects is necessarily sectarian,
because, while it may be consistent with the
doctrines of one or many of the sects, it will be
inconsistent with the doctrine of one or more of them."
Id. at __, 92 N.E. at 254-55.
18 Herold v. Parish Bd. of School Directors, 136
La. 1034, -, 68 So. 116, 121 (1915).
19 See, e.g., People ex rel. Vollmar v. Stanley, 81
Colo. 276, 255 Pac. 610 (1927); Hackett v.
York has chosen to align itself with the
majority sentiment. In Lewis v. Board of
Educ.,20 the petitioner pleaded three
causes: reading of the King James and
other versions of the Bible, provisions in
the city charter which were interpreted as
prohibiting the Board of Education from
excluding the Bible from schools, and the
use by religious groups of local schools
after hours. The court held that the mere
reading of the Bible without comment is
not in violation of any constitutional
prohibition regarding sectarianism or
interference with religious freedom.
In no sense does the practice of reading
from the Scriptures destroy or weaken or
affect the cleavage between Church and
State .... Nor is it shown that the practice
runs counter to the "free exercise and
enjoyment of religious profession and worship,
without discrimination or preference." ....
This attitude is a clear statement of the
majority position regarding Bible reading.
In reaching its conclusion the court relied
Brooksville Graded School Dist., 120 Ky. 608, 87
S.W. 792 (1905); Donahoe v. Richards, 38 Me.
379, 61 Am. Dec. 256 (1854); Kaplan v.
Independent School Dist., 171 Minn. 142, 214 N.W.
18 (1927); State ex rel. Freeman v. Scheve, 65
Neb. 876, 93 N.W. 169 (1903); Carden v. Bland,
199 Tenn. 665, 288 S.W.2d 718 (1956);
Religious Education, 64 Pa. D.&C.2d 549 (Dep't
of Justice 1948).
20 157 Misc. 520, 285 N.Y. Supp. 164 (Sup. Ct.
1935), modified in other respects, 247 App. Div.
106, 286 N.Y. Supp. 174 (1st Dep't 1936), appeal
dismissed, 276 N.Y. 490, 12 N.E.2d 172 (1937)
(for lack of constitutional issue).
21 Id. at 530, 285 N.Y. Supp. at 174, quoting from
N.Y. CONST. art. I, §3. In regard to the
constitutionality of religious groups holding meetings in
the school building after classes, the court said
that so long as the meetings did not consist of
religious services it would be permissible: "It is
the use to which the school buildings are put and
not the identity of the users, that is decisive of the
lawfulness of the use." Id. at 526, 285 N.Y. Supp.
on what it considered the religious tradition
of our country and the references to God
in our daily activities. For those of
different belief the Bible's value as a literary
work of art was considered.2 2 But the court
was reluctant to argue the merits of Bible
reading; that question was for the Board of
Education. Rather than
was the issue.
This distinction between policies and
power has been recognized in other
The law does not forbid the use of the Bible
...in the public schools .... Whether it is
prudent or politic to permit Bible reading in
the public schools is a question for the
school authorities to determine .... 23
Massachusetts has ruled constitutional a
public school committee regulation
ordering Bible reading and prayer each day,
substantially for the above reasons, saying,
however, that although the motive was
instruction in piety, justice and truth, the
regulation not against
children holding different religious
principles . 4
This line of argument has been used to
exclude as well as admit the Bible into
public schools. An Ohio municipal board
of education had passed a resolution
prohibiting religious instruction and the
read22 This argument was rejected in State ex rel.
Dearle v. Frazier, 102 Wash. 369, 173 Pac. 35
23 State ex rel. Freeman v. Scheve, 65 Neb. 876,
-, 93 N.W. 169, 172 (1903).
24 Spiller v. Woburn, 94 Mass. (12 Allen) 127
(1866). See also Wilkerson v. City of Rome, 152
Ga. 762, 110 S.E. 895 (1922), which held that an
ordinance requiring the daily reading of a portion
of the King James version of the Old or New
Testament along with the recitation of a prayer,
in either of which individual students could
decline to take a part, does not infringe on individual
ing from religious books, including the
Bible, in public schools. In upholding the
resolution, the court concluded that
precisely because curricula are policy matters
delegated to local boards by the legislature,
it is not for the court to interfere or
attempt to determine the wisdom of the
board's regulation. 25
Use of the Bible in public schools for
purposes other than daily readings without
comment has not usually found acceptance.
For example, where schools have
attempted to use the Bible as a formal
textbook, even where attendance was not
compulsory, the courts in general have not
allowed the practice. 26 So long as the Bible
is used only for selected readings, even if
it is maintained that portions of a given
version are sectarian, the courts will not
assume that those portions will be read.27
But when the Bible is used as a textbook
the entire version must be held as suitable
nonsectarian material, and, forced to this
extreme, most jurisdictions have found
such regulations unconstitutional. 28
Although the question of compulsory
attendance at prayer recitations and Bible
readings seems as crucial as the sectarian
25 Board of Educ. v. Minor, 23 Ohio St. 211
26 State ex rel. Dearle v. Frazier, 102 Wash. 369,
173 Pac. 35 (1918); State ex rel. Weiss v. District
Bd., 76 Wis. 177, 44 N.W. 967 (1890).
27 State ex rel. Freeman v. Scheve, supra note 23.
28 However, a Michigan court held that a book
based on the Bible, containing a collection of
moral principles affirming the Ten
Commandments, which was read from without comment by
the teacher, and during which time children could
absent themselves on the application of their
parents, was constitutional. The court used a
historical argument and concluded that the Bible was
not intended to be excluded by first amendment
prohibitions. Pfeiffer v. Board of Educ., 118 Mich.
560, 77 N.W. 250 (1898).
issue, it has not been the basis for as much
controversy. The reason appears to be that
the attendance problem is avoided by
making attendance noncompulsory. However,
since it is axiomatic that some Bible must
be used in Bible readings, whatever version
chosen will be subject to cries of
sectarianism from any group which authorizes a
Cases emphasizing the compulsion
element as the basis for objection seem
uniformly agreed that mandatory attendance
at readings or prayer recitations will
invalidate any such exercise. 29 Three years
ago an action was brought in the federal
district court of Pennsylvania to have
declared as unconstitutional a statute
providing for Bible readings on a daily basis. 30
In one school considered, the Bible was
read over a loud speaker by student
members of the Radio and Television
Workshop. The pupils selected to read were free
to choose their own text and verse. In
the past, readings had been made from the
King James, Douay and Jewish Holy
29 State ex rel. Freeman v. Scheve, supra note 23;
People ex rel. Vollmar v. Stanley, supra note 19.
See also Wilkerson v. City of Rome, supra note
24; Moore v. Monroe, 64 Iowa 367, 20 N.W. 475
(1884); Hackett v. Brooksville Graded School
Dist., 120 Ky. 608, 87 S.W. 792 (1905); People
ex rel. Ring v. Board of Educ., 245 Ill. 334, 92
N.E. 251 (1910).
30 Schempp v. School Dist., 177 F. Supp. 398
(E.D. Pa. 1959). Subsequent to this decision,
which enjoined the defendant school district from
executing the Pennsylvania statutory Bible
reading requirement, the school district filed an appeal
with the Supreme Court. Meanwhile, the state
legislature amended the education law (PA. STAT.
ANN. tit. 24, §15-1516 (Supp. 1960)), thus
severely subduing the coercive elements found so
objectionable in the existing Bible reading statute.
Defendant then returned to the district court and
Following the readings, the students were
told to rise and repeat the Lord's Prayer.
Over objections, the petitioner's child was
directed by the assistant principal to attend
the "devotional services" and ordered by
his home room teacher to stand during
recitation of the Lord's Prayer. 31 Although
the petitioner was Unitarian, the case
seemed to hinge on the sectarian differences
of Jewish students.3 2
In holding the procedure
unconstitutional, the court relied heavily on
compulsion and coercion involved:
The daily reading of the Bible buttressed
with the authority of the State and, more
importantly to children, backed with the
authority of their teachers, can hardly do less
than inculcate or promote the inculcation
of various religious doctrines in childish
It has not followed, however, that mere
voluntary attendance measures will
necessarily remove the constitutional ground for
moved for relief from the injunction on the
ground that the amendment caused the issue in
the case to be moot. The motion was denied
because of the pending appeal. Schempp v. School
Dist., 184 F. Supp. 381 (E.D. Pa. 1959). In view
of the amendment the Supreme Court disposed of
the appeal in a per curiam opinion, vacating
judgment and remanding for further proceedings as
the district court might deem appropriate. School
Dist. v. Schempp, 364 U.S. 298 (1960). Plaintiff
Schempp thereupon moved before the district
court for permission to file amended pleadings,
which motion the defendant opposed. The district
court ruled, per curiam, "that a useful purpose
would be served by permitting it to be filed, and
that prima facie it states a cause of action ...
Accordingly we will grant the plaintiffs' motion
but in so ruling we desire to make it clear that we
decide no more than that which we have stated."
Schempp v. School Dist., 195 F. Supp. 519, 520
(E.D. Pa. 1961).
31 Schempp v. School Dist., 177 F. Supp. 398,
406 (E.D. Pa. 1959).
32 Id. at 401 & n.14.
33 Id. at 404.
complaint.3 4 A New Jersey case3 5 held as
unconstitutional a municipal board of
education plan allowing free distribution in
schools, after classes, of Gideon (King
James version) Bibles to those students
whose parents had signed written requests.
It was found on the testimony of
psychologists that those students who chose
not to take part would have pressure
exerted on them, and that the school board
would seem to be putting its stamp of
approval on the Gideon version. 36 The
court felt that although the distribution was
voluntary there was nevertheless an
interference with free exercise of religion. This
holding, however, has been specifically
rejected in other jurisdictions, 3 7 is
inconsistent with previous New Jersey decisions, 3
and its philosophy has not been followed
in a recent ruling by the Commissioner of
Education of that state. 39
Prayer and Bible situations have no
monopoly on the first amendment-public
school controversy. The question of
whether or not public school teachers may
wear religious garb, for example, has
arisen where local school boards have hired
members of a particular religious sect to
teach in a public school. According to the
New York view, the state superintendent
of schools has power to order that
distinc34 Herold v. Parish Bd. of School Directors, 136
La. 1034, _, 68 So. 116, 121 (1915).
35 Tudor v. Board of Educ., 14 N.J. 31, 100 A.2d
857 (1953), cert. denied, 348 U.S. 816 (1954).
36 But cf. Evans v. Selma Union High School
Dist., 193 Cal. 54, 222 Pac. 801 (1924) (per
37 Carden v. Bland, 199 Tenn. 665, 288 S.W.2d
38 Doremus v. Board of Educ., 5 N.J. 435, 75
A.2d 880 (1950), appeal dismissed, 342 U.S. 429
(1952), discussed in note 5 supra.
9 N.Y. World Telegram & Sun, Sept. 7, 1961,
p. 3, col. 1.
tive religious dress not be worn in
classrooms, under penalty of dismissal. As in
Lewis and Engel, the court's position is
that the decision is one of policy and not
constitutionality. 40 Absent a statute or state
board order, the question still remains one
of policy only; thus a ruling either way by
the local board is constitutionally
Recently a New York Appellate
Division case 42 presented constitutional issues
similar to those now raised in Engel v.
Vitale, although under a different factual
situation. A proceeding was instituted to
revoke a Board of Education regulation
recommending that the words "under God"
be included in the daily pledge of
allegiance, pursuant to a recommendation to
that effect from Congress. The court held
that since the pledge was voluntary and no
penalties attached for refusal, the
regulation did not violate state or federal
constitutions. In citing the Supreme Court, the
Appellate Division said that coercion of
the sort condemned by that Court was not
present;43 being made to choose between
40 O'Connor v. Hendrick, 184 N.Y. 421, 77 N.E.
41 Hysong v. School Dist., 164 Pa. 629, 30 Atd.
482 (1894); Gerhardt v. Heid, 66 N.D. 444, 267
N.W. 127 (1936), in which the nuns employed by
respondent were wearing the habit of the
Sisterhood of St. Benedict. The court said: "Whether
it is wise or unwise to regulate the style of dress
to be worn by teachers in our public schools or
to inhibit the wearing of dress or insignia
indicating religious belief is not a matter for the court
to determine. The limit of our inquiry is to
determine . . . the provisions of the Constitution." Id.
at -, 267 N.W. at 135.
42 Lewis v. Allen, 11 App. Div. 2d 447, 207
N.Y.S.2d 862 (3d Dep't 1960).
43 Id. at 449-50, 207 N.Y.S.2d at 865. In
Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940),
the Supreme Court held that the Pledge of
Allegiance is not a religious act and that a state could
remaining silent during the pledge or
leaving the room is not such forced
nonconformity as would be unconstitutional.44
HistoricalSetting of the First and Fourteenth Amendments
Whenever a case of first impression
arises under-a given law the courts find it
helpful to turn to legislative histories and
to sense the population's feeling at the time
of enactment. It was the result of just such
a study which led to the Special Term
decision permitting the Regents Prayer.45 The
court concluded that the sense of the nation
at the time of ratification of the first and
fourteenth amendments could not be read
as intending the common practice of daily
prayers and Bible readings be discontinued
in the public schools.
Special Term acknowledged that in
1868, when the fourteenth amendment was
ratified, the separation of public education
and church affiliations had taken firm root,
but maintained that separation was not
considered to extend to prayer or Bible
readings. Although some'state constitutions
contained provisions prohibiting sectarian
instruction in schools, classes generally
compel school children to take part in the pledge
in order to foster a sentiment of national unity.
Three years later, in West Virginia Bd. of Educ.
v. Barnette, 319 U.S. 624 (1943), the court
overruled itself, saying that such acts pertain to the
individual's spirit and intellect, and as such are
reserved by the first amendment from official
control. New York, however, had anticipated
only the former ruling, for in 1939 the Court of
Appeals held in People v. Sandstrom, 279 N.Y.
523, 18 N.E.2d 840 (1939) that the salute to the
Flag, not being a religious act, could be demanded
44 Lewis v. Allen, supra note 42, at 450, 207
N.Y.S.2d at 865-66.
45 Engel v. Vitale, 18 Misc. 2d 659, 191 N.Y.S.2d
453 (Sup. Ct. 1959). Justice Meyer wrote: "It is
... contended that the recognition of prayer is an
school committee had passed an order
requiring Bible reading in the schools 47 and
"New York's Superintendent of Common
Schools had ruled no less than five times
that prayer and Bible exercises could be
conducted ... before school hours ... " if
not made mandatory.
A rejection of the Special Term view,
said the Court of Appeals, would be
difficult to explain in the face of such historical
The references to the Deity in the
Declaration of Independence; the words of our
National Anthem: "In God is our trust"; the
motto on our coins; the daily prayers in
Congress; the universal practice in official
oaths of calling upon God to witness the
truth; the official thanksgiving
proclamations beginning with those of the
Continental Congress and the First Congress of the
United States and continuing till the
present; the provisions for chaplaincies in the
armed forces; the directions by Congress in
modern times for a National Day of Prayer
and for the insertion of the words "under
God" in the Pledge of Allegiance to the
Flag .... 49
integral part of our national heritage, and that,
therefore, the 'establishment' clause cannot have
been intended to outlaw the practice in schools
any more than from the rest of public life; . ..
that prayer in the schools is permissible not as a
means of teaching 'spiritual values' but because
traditionally, and particularly at the time of the
adoption of the First and Fourteenth
Amendments, this was the accepted practice. With this
argument the Court agrees." Id. at 673, 191
N.Y.S.2d at 470.
46 Id. at 674-75, 191 N.Y.S.2d at 472.
4 Spiller v. Woburn, 94 Mass. (12 Allen) 127
48 Engel v. Vitale, supra note 45, at 675, 191
N.Y.S.2d at 472. For a comprehensive discussion
of prayer and Bible readings in the public schools
at the time the first and fourteenth amendments
were ratified, see id. at 673-80, 191 N.Y.S.2d at
49 Engel v. Vitale, 10 N.Y.2d 174, 181, 176
For the Supreme Court itself has admitted,
"We are a religious people whose
institutions presuppose a Supreme Being." 50
The first amendment to the Constitution
provides that Congress shall make no law
respecting either the establishment of a
religion or preventing the free exercise
thereof. In Cantwell v. Connecticut,5 the
Supreme Court interpreted this to mean
that an individual shall be protected from
compulsion to follow a particular creed
and safeguarded in freely choosing his own.
Subsequent litigation implies that the test
which the Supreme Court will apply and
which the Regents Prayer must pass to
be held constitutional will be comprised of
two questions: Is it coercive, 52 and does it
violate the separation philosophy? An
affirmative answer to either will invalidate
Since the trilogy of Everson v. Board of
N.E.2d 579, 581, 218 N.Y.S.2d 659, 661 (1961).
50 Zorach v. Clauson, 343 U.S. 306, 313 (1952).
51 310 U.S. 296,303 (1940).
52 Although state courts also manifest agreement
that coercion and divisiveness, if present, will
invalidate any board of education regulation
concerning the recitation of prayers, there is not
uniform agreement on what acts constitute
Generally, where a prayer is offered and
accompanied by a reading of the Bible, so long as
the student is permitted to leave the room on
presentation of a note from his parents, courts
rule out the presence of coercion. Moore v.
Monroe, 64 Iowa 367, 20 N.W. 475 (1884).
However, Wisconsin has held, in a similar fact
pattern, that: "When ... a small minority of the
pupils in the public school isexcluded, for any
cause, from a stated school exercise, particularly
when such cause is apparent hostility to the Bible,
which a majority of the pupils have been taught
to revere, from that moment the excluded pupil
loses caste with his fellows, and is liable to be
regarded with aversion, and subject to reproach
and insult." State ex rel. Weiss v. District Bd.,
76 Wis. 177, -, 44 N.W.967, 975 (1890).
Educ., 53 McCollum v. Board of Educ.54
and Zorach v. Clauson55 are
comparatively recent decisions, they become quite
useful in the search for a Supreme Court
policy on the determining issues of
coercion and separation.
The Supreme Court has stated that any
plan for accommodating the spiritual needs
and desires of some, if coercive, would be
unconstitutional. This position is clearly
brought out in the Zorach case,56 which
held as constitutional a New York early
release program. A majority of the Court
refused to grant a trial on the plaintiff's
contention that the system was coercive,
because the New York Court of Appeals
previously ruled the question of coercion
had not been properly introduced on the
trial level. However, Mr. Justice Douglas,
in writing the majority opinion, stated that
if coercion were in fact present then the
plan would not be constitutional. 5 7
Three dissenting opinions were submitted
in Zorach. Justices Jackson and
Frankfurter said that the same coercive element
the majority felt would be fatal if present,
was inherently a part of the early release
program. 58 Mr. Justice Black also attacked
5330 U.S. 1 (1947).
54 333 U.S. 203 (1948).
55 343 U.S. 306 (1952).
57"The government must be neutral when it
comes to competition between sects .... It may
not coerce any one to attend church, to observe a
religious holiday, or to take religious instruction."
Id. at 314. See also McGowan v. Maryland, 366
U.S. 420, 563 (1961) (Justice Douglas
dissenting): "But those who fashioned the Constitution
decided that if and when God is to be served, His
service will not be motivated by coercive measures
of government ..
58 Zorach v. Clauson, supra note 50, at 321, 323.
the coercive element, saying that the New
York law is aimed at promoting religious
attendance by those who would not
otherwise go; in its hindrance to nonbelievers,
he maintained, early release is an
abandonment of a neutral position.5 '
However, merely because two courses
of conduct are laid before a student does
not mean that he is thereby coerced. Mr.
Justice Jackson has said:
[I]t may be doubted whether the
Constitution which, of course, protects the right to
dissent, can be construed also to protect one
from the embarrassment that always attends
nonconformity, whether in religion,
politics, behavior or dress.60
In Engel v. Vitale, the Court of Appeals
decided that coercion, within the meaning
given it by the Supreme Court, is not
present in the Regents Prayer situation, 1 and
accepted the attitude presented in the
Special Term opinion:
To recognize "subtle pressures" as
compulsion under the [first] amendment is to stray
far afield from oppressions the amendment
was designed to prevent; to raise the
psychology of dissent, which produces pressure
on every dissenter, to the level of
governmental force; and to subordinate the
spiritual needs of believers to the psychological
needs of nonbelievers. The equality of
treatment which the amendment was designed to
produce does not require, indeed proscribes,
so doing. 62
The Court of Appeals position on
coer591d. at 318.
60 McCollum v. Board of Educ., 333 U.S. 203,
232-33 (1948) (concurring opinion) (dictum).
01 The court also relied on an essential provision
in the Special Term order which insured that no
pupil need take part in or be present during the
act of reverence. Engel v. Vitale, 10 N.Y.2d 174,
179. 176 N.E.2d 579, 581, 218 N.Y.S.2d 659, 660
62 Engel v. Vitale, 18 Misc. 2d 659, 695-96, 191
N.Y.S.2d 453, 491-92 (Sup. Ct. 1959).
cion in the Regents Prayer is not a
unanimous one. Judge Dye, in his dissent to
Engel v. Vitale, relied on the attitude of the
Zorach dissenters and concluded that the
administration of such a prayer is
inherently divisive.6 3
Whatever the final decision, it is clear
that the Supreme Court will carefully
consider the relationship between insignificant
"subtle pressures" on the one hand and
unreasonable interference with the
privilege of the majority to worship freely on
On their faces, the Everson, McCollum
and Zorach decisions ratify a conviction of
separation. A majority held in Everson
that reimbursement to parents who
financed bus transportation for their
children to parochial schools was not an act
establishing a religion.64 Nevertheless, Mr.
Justice Black, in writing the majority
opinion, made it clear that "in the words of
Jefferson, the clause against establishment
...was intended to erect 'a wall of
separation between church and State.' "65
A year later these words were elevated
from dictum to ratio decidendi when in
63 The prayer fosters "a type of compulsion,
exerting as it does ... pressure which an immature
child is unable to resist because of his inherent
desire to conform, and constituting a subtle
interference by the State ...with religious
freedom ..." Engel v. Vitale, supra note 61, at 190,
176 N.E.2d at 587, 218 N.Y.S.2d at 669 (Judge
Mr. Justice Frankfurter said in McCollum,
supra note 54, at 231: "The public school is at
once the symbol of our democracy and the most
pervasive means for promoting our common
destiny. In no activity of the State is it more
vital to keep out divisive forces than in its
schools .. "
64 Everson v. Board of Educ., 330 U.S. 1 (1947).
6 5 Id. at 16.
McCollum a unanimous Court ruled that
the use of school buildings for religious
training of children, while those not
electing to attend this training either remained
in their regular classes or were sent to study
halls, was prevented by the first
amendment. 66 Mr. Justice Frankfurter said in a
We are all agreed that the First and
Fourteenth Amendments have a secular reach
far more penetrating in the conduct of
Government than merely to forbid an
"established church".... "Complete separation
• . . is best for the state and best for
This year the Supreme Court again took
pains to express its long standing
conviction in separation. The case was Torcaso v.
Watkins,6 s which involved the
constitutionality of a provision in the Maryland
constitution requiring a declaration of belief
in God before assuming public office. Mr.
Justice Black, writing for a unanimous
Court, said neither state nor federal
can constitutionally pass laws ... which aid
all religions as against non-believers, and
neither can aid those religions based on a
belief in the existence of God as against
those religions founded on different
The Torcaso decision is c'ear in its
statement that Zorach is not to be considered
a retreat from McCollum. Admitting then
that the philosophy of the Supreme Court
continues to be a firm belief in the
separation theory, exactly what are the limits of
that separation? It seems uniformly agreed
that the theory of a healthy separation
66 McCollum v. Board of Educ., 333 U.S. 203
67 Id. at 213, 232.
68367 U.S. 488 (1961).
6 9 Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
does not, for instance, require the state to
appear completely indifferent before
religion. Mr. Justice Douglas said in his
majority opinion in Zorach that the first
separation must be complete and
unequivocal ... no exception ... absolute. The First
Amendment, however, does not say that in
every and all respects there shall be no
concert or union or dependency one on the
other. That is the common sense of the
matter. Otherwise the state and religion
would be aliens to each other - hostile,
suspicious, and even unfriendly .... We are a
religious people whose institutions
presuppose a Supreme Being. 70
That is, only in the areas of
establishment and freedom of religious pursuit must
the separation be universal; in other areas
the doctrine of sensible accommodation
would allow a realistic degree of contact
without being in violation of the principle
of separation. The Court of Appeals has
held that the Regents Prayer is within the
bounds of permissive accommodation. In
support of New York's position the
Supremi Court may look to "literally
countless illustrations . . . that belief and trust
in a Supreme Being was from the beginning
and has been continuously part of the very
essence of the American plan of
government and society."'" In addition, the Court
may then turn its attention to a judicial
philosophy ratifying noncompulsory
nonsectarian prayers and Bible readings in the
public schools, which antedates the
fourteenth amendment7 2 and which has
continued to the present day a reflection of
70 Zorach v. Clauson, 343 U.S. 306, 312-14
71 Engel v. Vitale, 10 N.Y.2d 174, 180-81, 176
N.E.2d 579, 581, 218 N.Y.S.2d 659, 661 (1961).
72 Donahoe v. Richards, 38 Me. 379, 61 Am. Dec.
256 (1854). For a comprehensive survey of the
Recent Decision: Religious Oaths
In Torcaso v. Watkins,' a recent case
before the United States Supreme Court,
petitioner was appointed a notary public
by the Governor of Maryland but the
commission was never issued because petitioner
refused to make the following declaration:
"I, Roy R. Torcaso, do declare that I
believe in the existence of God."'2 This
declaration was demanded of the petitioner in
order to fulfill the requirement contained in
Article 37 of the Maryland Declaration of
Rights that state officers declare their belief
in God.3-The United States Supreme Court,
reversing the Court of Appeals of
Maryland, held that this "test" for office
unconstitutionally invaded "the appellant's
freedom of belief and religion" and that he was
entitled to a writ of mandamus compelling
the issuance of his commission.
The instant case is the latest chapter in
the history of the test oath, an institution
which appeared on the American scene
before the United States was established.
Religious tests and oaths were part of the
machinery of the established churches
evolution in social, statutory and judicial attitudes
regarding the relationship between church and
public schools, see JOHNSON & YOST, SEPARATION
OF CHURCH AND STATE (2d ed. 1948).
1367 U.S. 488 (1961).
2 Torcaso v. Watkins, 223 Md. 49, -, 162 A.2d
438, 440 (1960).
3 Article 37 declares "that no religious test ought
ever to be required as a qualification for any
office of profit or trust in this State, other than
a declaration of belief in the existence of God;
nor shall the Legislature prescribe any other oath
of office than the oath prescribed by this
Constitution." (Emphasis added.) The Maryland Court
of Appeals, in Torcaso v. Watkins, supra note
2, at -, 162 A.2d at 441-42, decided that the
word ought was not used in a permissive sense
with regard to belief in God, but that a
declaration of such belief was mandatory and required
no legislative enactment to, make it so.