Page 6, 8th March 1963

8th March 1963
Page 6
Page 6, 8th March 1963 — THE FORBIDDEN PRAYER

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People: Hugo Black


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ON June 25, 1962, the U.S. Supreme Court handed down a decision

which has aroused more controversy than anything the Court has done since its school-desegregation decision of 1954. At issue was a 22-word prayer composed for use in the public schools of the State of New York by the State's highest educational authority, the Board of Regent S. (Since "public school" means something quite different in Britain, the American public schools will be called state schools in the rest of this article.) Deliberately designed to be undenominational and acceptable to all believers in God, the prayer read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country." As the Court acknowledged in its decision, school children were not obliged to recite the prayer. Teachers recited the prayer in classrooms at the beginning of the school day and those children whose parents objected to the prayer were free to remain silent or even not to be present at all until after the prayer.

None the less, said the Court, the prayer violated a clause of the First Amendment to the Federal Constitution which prohibits "an establishment of religion". Since the Court's opinion was written by Justice Hugo Black, who has a penchant for rather vague rhetoric, it was not made clear whether the prayer was unconstitutional because it was written by an organ of the State or merely because it was a prayer used in a public institution.


The Court will soon have an opportunity to clarify the matter. however, for there are at present two cases on its calendar contesting the constitutionality of reciting the Lord's Prayer and of reading some verses of the Bible in state schools. It is probable, though not certain, that some time late next spring the Court will lay down the doctrine that any religious activity in state schools, even on a voluntary basis, is unconstitutional and therefore prohibited. The Court will thus crown with success a drive for the secularisation of the state schools which has been conducted for years principally by three organisations: the American Civil Liberties Union, Protestants and Others United for Separation of Church and State, and the American Jewish Congress.

These decisions have left and will leave a large part of the American people in a state of bewilderment and frustrated anger. But the bewilderment must be even greater abroad. Like baseball and our peculiar kind of football, the American constitutional system is hopelessly unintelligible to foreigners.

Yet to get some grasp of what the current controversy in the United States over Church-State relations is about, it is essential that the reader should have some understanding of the Constitution. For we Americans live under a written Constitution which is applied by the courts as a supreme law that overrides every act of any governmental body, be it a local school district, a county governing board, a State legislature or the national Congress in Washington.

Revolution Because of this power of judicial review of legislation, as it is called, our courts are able to determine important public policies while seeming only to decide legal controversies between individuals. In 1954, for instance, the U.S. Supreme Court decided a group of five cases in which a handful of Negro children had sued for admission to the segregated state schools in five out of the thousands of school districts in the United States.

But by deciding in the Negroes' favour the Court in effect decreed a major social revolution in the American South. Its decree has been enforced, where necessary, at the point of the bayonet by small armies of troops.

This unique and powerful institution, the Supreme Court, has only within the past generation turned its attention to the relations between government and religion. There is a reason for this tardiness in taking up a subject of such interest. The First Amendment to the Constitution, on its face, affects only the Federal government. "Congress [the national legislature)," says the First Amendment, "shall make no law respecting an establtshment of religion or prohibiting the free exercise thereof."


Now. the areas where contact between government and religion is most frequent and close are marriage, the family, education, public welfare and criminal law. But under our federal system, legislation in these areas is largely the province of the States rather than of the Federal government. Hence, since the Amendment was binding only on the Federal government, the Supreme Court had little occasion to interpret the meaning of the religion clauses of the First Amendment until 1925.

In that year, however, the Court delivered itself of an interpretation of the Fourteenth Amendment, which says in part: "No State shall deprive any person of life, liberty or property without due process of law." The Court had long before determined the phrase, "without due process of law" was equivalent to "arbitrarily" or "unreasonably". Now the Court asked what was the liberty of which no State could unreasonably deprive a person. It replied to its own question: "liberty" means those freedoms which are defined in the First Amendment, including religious liberty.

Henceforth the Court was empowered to protect the religious liberty of all citizens, not only against infringement by the Federal government, but against abuse by any State or local government in the land. The volume of cases in this field has grown steadily ever since.

Church-State Yet the Court is still only at the beginning of the task of elaborating a fully-formed an coherent body of constitutional law governing the relations between government and religion in the United States. In most parts of the socalled Church-State field, the Court's decisions as yet trace only an ill-defined and wavering line.

In 1925, the Court overruled an Oregon state law which required all children to attend state primary schools. "The fundamental theory of liberty upon which all governments in this Union repose," said the Court, "excludes any general power of the State to standardise its children by forcing them to accept instruction from public teachers only."

For two decades after that decision, the Court's efforts in the Church-State field consisted in interpreting the "free exercise of religion" clause of the First Amendment. In a long series of cases, most of them occasioned by the proselytising activities of Jehovah's Witnesses, the Court went far to nullify any attempt by governmental authorities to interfere with the individual's right to practice and to propagate his faith, however odd or offensive it may seem to other persons.

It was not until 1947 (only 15 years ago) that the Court addressed itself to the meaning of the "establishment of religion" clause as it relates to the role of government in education. It is from this year that we must date the controversy over Church-State relations that is now raging and will go on for decades.


But here we must digress for a moment to explain a bit of history. The American state school system

had its origins in the 1840s. At that time the decision was taken in one State after another to make elementary education compulsory for all children and to establish a system of state schools for all who chose to use them.

These schools were to be nonsectarian—no doctrines peculiar to any church would be taught—but not irreligious. Since America was then overwhelmingly Protestant in religion, a compromise acceptable to the large majority of the people was arrived at. The state schools would encourage religion by the use of interdenominational prayers and hymns, the reading of the Bible (without sectarian commentary) and the inculcation of common Christian moral precepts. The state school. in short, was to be an interdenominational Protestant school.

On the other hand. state aid to church-related schools was rigorously forbidden. Since the only major group which continued to make a serious effort to maintain its own schools was the Catholics, the prohibition against aid to church schools was soon reinforced by the vigorous Protestant prejudices of America and has become a quasi-article of faith for a large part of the American people.

A Breach

The case decided by the Supreme Court in 1947 concerned the public payment of bus fares of children attending Catholic as well as other schools in a New Jersey township. The Court noted that the Catholic schools met "the secular educational requirements which the State has power to impose", and said, "It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose." The Court, therefore, refused to declare the payment of bus fares for parochial school students unconstitutional.

Many persons resented this decision as a breach in the "wall of separation" between Church and State and as opening the way to eventual governmental aid to the Catholic schools. But, on the other hand, the Court's opinion in this case also contained words of comfort for those who wished the complete secularisation of public institutions.

For in the course of arriving at its decision, the Court, speaking in this instance also through Justice Black, laid down a very broad definition of the prohibition against an establishment of religion. "Neither a State nor the Federal government," said the Court, "can pass laws which aid one religion, aid all religions, or prefer one religion over another."

Unconstitutional Using this principle, the Court in the following year declared unconstitutional a programme of religious instruction in the state schools of Champaign, Illinois. The religious instruction was given in the school buildings, not, however, by public teachers, but by ministers of religion who taught the children for one hour a week in separate groups according to their religious denomination. Attendance at the religious instruction classes was voluntary. But the Court none the less found that the use of state school system for such purposes was "an establishment of religion" and so unconstitutional.

Moreover perhaps by the storm of protest against its decision, the Court in 1952 upheld a somewhat similar programme of religious instruction in New York City. The only difference was that the children were allowed to leave the school building one hour a week in order to attend religion classes in buildings belonging to their respective churches. This, the Court said, was not an establishment of religion. "We are a religious people whose institutions presuppose a Supreme Being," it added. "When the state encourages religious instruction or co-operates with religious authorities by adjusting the schedule of public events to sectatian needs, it follows the best of our traditions." The organisations striving for the secularisation of American public life received a signal defeat in this case.

In 1961 they were again defeated when the Court decided that laws prohibiting commercial transactions on Sunday are not unconstitutional. The purpose of these laws, according to the Court, is not to aid religion—though in fact they may have that effect—but to establish a common day of rest.

Finally, in 1962, as noted above, the Court declared the New York school prayer unconstitutional. It is clear that we are still far from an adequate definition of what is meant by "an establishment of religion". But one may predict that any kind of religious activity in state schools will be under steady attack and will in most cases be forbidden by the Courts. What

effect this will have on the traditional Protestant attachment to the state schools remains to be seen.

School Aid

There remains one other major area where the application of the establishment of religion clause is in dispute. That is the question of governmental aid to schools and other institutions of public welfare conducted by religious groups. Church-related elementary and secondary schools (90 per cent of which are Catholic) get no aid at all beyond certain "fringe benefits", such as a share in the provision of hot lunches to school children by the Federal government (it is a way of getting rid of our vast agricultural surplus) and, in some localities, free bus rides.

But church-related universities, of which there is a large number in the United States, conducted by many different churches, receive millions of dollars from the Federal government through a bewildering variety of loans and grants. Church hospitals, orphanages, homes for the aged and similar institutions are also substantially aided by both the Federal and the State governments.

It is the elementary schools that are the neuralgic point as regards governmental aid. Protestants have always regarded Catholic schools as un-American, because Protestants unconsciously look upon the state school as the true established church of the United States. Secularisers (who include liberal Protestants, Jews and agnostics) want all children to learn the true democratic faith in an aseptically agnostic state school. Hence any proposal of aid to church schools raises their hackles.

But today the proposal to extend Federal aid to state schools while denying it to church schools also raises the hackles of Catholics and a minority of Protestants and Orthodox Jews. The Federal Government has never undertaken a programme of general aid to the state schools, although such a programme has been urged for decades. The opposition to it comes chiefly from Republicans, who object to what they regard as unnecessary Federal spending, and from Southern Democrats, who see in Federal ajd another weapon for breaking down school segregation in the South. But the question of including or excluding church schools from a general Federalaid-to-education programme has certainly contributed to keep any such programme from being enacted into law until the present time.

Not Decided

The Supreme Court has so far not decided the constitutional issue involved in such aid and has refused to accept opportunities for doing so. Sooner or later, presumably, the Court will have to face the issue, but there is no telling how it will decide.

It is true that the Court declared in 1947 that government may not pass laws which aid one religion or all religions. But the point at issue is whether subsidising a church-conducted school Is aiding religion in the constitutionallyprohibited sense.

For the church schools give a general education which is accepted by the State as satisfying the requirements of the compulsory education laws. The Court has already decided that parents have a right to send their children to these schools for their general education and may not be obliged to send them to state schools. If, then, the government should grant financial aid to all qualified schools, including church schools, it could be regarded as subsidising general education, which certainly fulfills a public purpose. The aid to religion resulting from the subsidy would then be regarded as incidental and not unconstitutional.


But if the opposite principle is adopted, then it will follow that government may not spend money even for public purposes, if some benefit to religion would result from the expenditure of public money. The effect of this principle would be not only to put religious education under a serious handicap in an era of rising educational costs and mounting taxation. It would mean that the whole weight of the welfare state would be thrown on the side of secularising forces and against institutions which attempt to combine public services with the satisfaction of religious needs.

Since it appears that the welfare State will be the typical state of Western civilisation for the indefinite future, the question of its relation to religion is of enormous importance. Such a state cannot be neutral towards the various religious beliefs of its citizens merely by refusing either to help or to hinder church-related institutions. If it does not adopt a policy of helping all alike, insofar as they perform public services, the state will effectively, if unintentionally, be the enemy of religion and a promoter of secularism.

This is the most important issue in Church-State relations in America (and elsewhere) today, more crucial by far than the emotional crisis induced by the recitation of prayers in schools.

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