Reading Engel v. Vitale Supreme Court Case Excerpts

0:00 Hello and welcome to another Primary Source Close Read. My name is Josh and today I’m excited to be joined again by dr. Josh Dunn as we take a look at the case of Engel v. Vitale. How are you Josh? Doing great, thanks for having me. Yeah, thanks for joining us. So today we’re going to be looking at a case that involves

0:23 a prayer said in school and the question of what the establishment clause of the first amendment actually means. So let’s go ahead and dive in. Great. So Josh, can you

0:44 tell me a bit about what we have here as our constitutional question? So does the reading of a non denominational prayer at the start of a school they violate the establishment of religion clause of the first amendment. So let’s actually take a step back. Can you tell me about the first amendment and specifically the establishment clause and the history of it?

1:08 Right. So with the first amendment you start off with the religion clauses and you then have the other rights that are guaranteed after that. The first part of the first amendment has a bit of an odd phrasing. Congress shall make no law respecting an establishment of religion. So what does it mean to have an establishment of religion and what

1:30 it would mean to have a law respecting on an establishment of religion? I think the historical evidence is pretty clear that they’re trying to do two things with the establishment clause. One was to forbid a national church. There can be no national church in the same way that the Anglican church is the national church of England. But then why wouldn’t they just say that?

1:51 And it’s that part respecting and establishment of religion. If you look at the debates over the establishment clause, it has that phrasing in fact to protect state established churches because there were congregationalists from New England who were afraid that congress would try to make laws interfering with their state established churches in New England. And so the clause was designed to do two things simultaneously to prevent

2:15 a national church and then also to protect state-established churches. We finally got rid of our last state established church in the 1830s in the United States. And then of course, you get the 14th amendment and then there are questions about what would it mean to then apply this clause to the states given this language.

2:35 Great. Yeah. So tell me a bit about the case itself then. So New York had created a nondenominational prayer that could be voluntarily said at the beginning of the school day. And this then led to the controversy where even though it was voluntary,

2:58 even though it was not nondenominational, if you go and read the prayer itself be difficult to identify a particular religion. There are people from many faiths that were involved in crafting this prayer, but nevertheless there was a lawsuit claiming that this violated the establishment clause, that this voluntary reading of it was violated the Establishment Clause.

3:23 Sure. And how did the State defend it? They obviously had some intention in creating the prayer. I believe part of the reason was this was during the Cold War. They wanted to emphasize religion as the United States was in an ideological battle against the atheist Soviet Union.

3:47 So in Court, what reasoning did the angle representing the State gives? So the argument was that this is not the establishing a church, that it wasn’t a prayer for a particular religion, it wasn’t a Protestant prayer,

4:08 wasn’t a Catholic prayer, wasn’t a Jewish prayer. So it was fairly ecumenical, you could say in its language. So it wasn’t established in a particular church as the State church, and also that it was voluntary. Students were not required to say the prayer. It was optional.

4:29 So those were the two primary defenses. Great. And how did the Court end up ruling then? So the Court ended up saying that the prayer was unconstitutional, that it did violate the Establishment Clause in a way established even though it wasn’t establishing a particular church as a church, that it was forcing

4:51 theism upon students or religious position upon students. In a way, you could say that the Court’s decision foreshadowed what became the endorsement test that the Court created in the 1980s is one of its ways of trying to decide what counts as

5:12 an Establishment Clause violation and what isn’t an Establishment Clause violation. The idea behind the endorsement test is that you can’t signal to religious dissenters that they’re outsiders. And I think you see something going on with this case that the Court was saying that students who were atheist, agnostic, whatever would happen to be,

5:34 would be made to feel as if they were not part of this, and then they’re being forced to participate even though they didn’t have to say the prayer. Forced to participate and listen to this religious exercise when they did not want to. Sure. Now, earlier you had talked about how the First Amendment initially only

5:56 applied to the federal government and the state governments were given some leeway. How does that relate to this case? Is incorporation involved here and the 14th Amendment? Well, so the Supreme Court had already incorporated the Establishment Clause to apply to the states in Everson versus Board of Education from 1947.

6:19 So they weren’t incorporating it here. But I would say this is one of those cases where you saw once the Court got involved in trying to draw lines between what counts as a violation, what doesn’t count as a violation. It had a very difficult time doing so in this case, I think an example of this, and it led to a good deal of frustration with the Court’s jurisprudence.

6:43 So if you go back and look, almost no one is satisfied with what the Court ruled on as it related to religion. But this is the court after Everson. It’s one of the cases where it’s trying to figure out what it’s interpretation of the Establishment Clause is going to be. If you look closely, I think what you find is almost no one was satisfied.

7:03 Everyone agreed that the Court Establishment Clause jurisprudence ended up being very difficult to make sense of them. The disagreement came with what to do about that, where some people wanted the Court to, shall we say, take a less sympathetic line towards religion and others thought the Court should be more accommodating towards religion.

7:26 So this is an important case as the Court was moving through these issues that really were generated because of that Everson versus Board of Education case. Once it got involved in 1947, it wasn’t going to be able to avoid these kinds of questions. Sure. So let’s take a look at some of the opinions here of the case.

7:49 Justice Hugo Black wrote the majority opinion in which the Court ruled in favor of battle. So what do you see here in this section of his opinion? Right, so this is where the Court is saying it doesn’t matter that it’s not establishing a particular religion, it’s not saying that the Presbyterian Church is the official state church of New York

8:12 and you have to say a Presbyterian prayer, a Catholic prayer or anything like that. Instead it uses this broader, more general language that it’s a religious activity and as it says there in the quote, a solemn avowal of divine faith and supplication for the blessings of the Almighty. And then they say this has always been religious. So the Court seems to be saying

8:32 that the Establishment Clause does more than just forbid and it’s not that they were seemed to they were saying the Establishment Clause doesn’t just forbid the establishment of an official state church in New York, instead it requires even more separation between religion and the state.

8:54 And of course, that again was what was launched in 1947 in the Everson case when the Court said that the Establishment Clause requires separation of church and state. Of course, afraid it’s not found in the Constitution. You trace it to letter from Thomas Jefferson to the Danbury Baptist Association in 1803. So you can see this idea of separation

9:14 becoming more prominent in the Court’s Establishment Clause jurisprudence. So here we have a different section of his opinion. What stands out here to you in this section? Yeah. So again here you can say that the Court saying, well, even though it’s not again a prayer of a particular religion, they were still prescribing a particular

9:40 prayer that was then going to be recited by many students, voluntarily of course. And even though it’s not against a particular religion, as he says, the religious beliefs that were embodied in the region prayer were still being established as official policy.

10:00 So again, it’s taking this idea of separation of church and state and extending it. Of course, Justice Black was also the author of the majority opinion and the Everson case. So he’s kind of working out what he meant by separation of church and state going back to 1947. Sure. And I think you mentioned this before, but the Court is also here getting out

10:25 that idea that even if it’s not explicitly establishing a religion, the fact that students who don’t voluntarily say the prayer are going to feel excluded in some way, is that correct? Yes. And they’re going to be compelled to listen to this religious exercise.

10:52 In a way, you could say that you can see shades or foreshadowing of the endorsement test, which I mentioned, but then also the coercion test as well that the Court came up with later in the 1980s. Sure. Now, the Court is sometimes not unanimous,

11:12 especially in big, controversial decisions. And really this comes down to just different interpretations of the Constitution. Now, as Americans, we do have an obligation to respect the rule of law and their decisions. But on the other hand, of course, the Court doesn’t always get it right.

11:36 We can point to multiple past decisions that are now infamous in the modern day. And so it’s also important to consider the dissenting opinions and for us as citizens to discuss the principles that are being involved here and how we should best interpret the Constitution. So here we have Justice Potter Stewart’s dissenting opinion.

11:59 What does Justice Stewart argue here? I believe he’s the only dissenting opinion in this case as well. But his position was this isn’t establishing an official state church, and so therefore this kind of prayer is fully within America’s political tradition, that it was very common.

12:21 You go back, as he points out, that from the Declaration of Independence to Presidents to Congress, there have been repeated appeals to the Almighty to God that no one thought violated the Constitution. They were courted for more general appeals and again, they weren’t saying it was the God of a particular faith.

12:42 And so therefore there’s not an Establishment Clause issue that’s his position with his prayer. It’s not establishing the Catholic Church is the official church of New York. It’s not establishing the Episcopal Church or the Presbyterian Church or any church is the official church. It’s nondenominational. It’s just part of this tradition of

13:02 calling upon the Almighty beseeching God for his assistance. So therefore it shouldn’t be considered unconstitutional. Right? Yeah. And I think Justice Stewart also points to, like you mentioned, Congress at the time, the Supreme Court.

13:24 Plenty of other government bodies started their sessions, or at some point during their session with a prayer. And so therefore it’s this idea of there is a long tradition and we’ve accepted it for a long time, therefore it’s kind of ingrained in our society.

13:46 Is that correct? And I wouldn’t say that it’s because it’s ingrained. It’s just that no one ever thought that it was actually unconstitutional until this point, in Stewart’s view. So the people who wrote the Constitution wrote the First Amendment obviously did

14:07 not think that these kinds of general, or even, you could say, generic appeals to the Almighty for assistance constituted an establishment of religion that’s really, I think, was decisive

14:28 for Stewart, but then it continues as well, so it’s part of these traditions. But I think that importantly for him, it was always there, and so he thought that the Court was reading something into it that had not been there before. Let’s go back to our original question.

14:51 Kuka, give me just a really quick summary. What’s the answer that the Court reached here? Does the reading of a non denominational prayer at the start of school they violate the Establishment of Religion clause? The Court said yes, it does. And that it establishes the religious ideas that are contained in the prayer,

15:11 even though it doesn’t say that you have to belong to a particular church. Thank you again for joining me today. The Bill of Rights Institute has a variety of other materials that are available on our website. You can track them out. They’re ranging all things US history.

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