School Prayer Gets a New Day in Court

Article excerpt

ONE of the most controversial of Supreme Court decisions in the modern era is Engel v. Vitale, the path-setting 1962 ruling on school prayer. The court held in Engel that the "establishment clause" of the First Amendment, made applicable to the states by the Fourteenth Amendment, prohibited organized prayer or other religious observance in public schools.

Now the court returns to this issue in Lee v. Weisman, which poses the issue of whether the First Amendment prohibits the recitation of a prayer at public-school graduation exercises. Oral argument was heard last November, and the ruling is expected soon. Some observers believe the Supreme Court will modify Engel and grant greater scope for non-compulsory religious expression in schools and other public facilities.

For Americans interested in church/ state issues, the 30-year-old Engel decision is well worth rereading. The particular religious observance which the court then reviewed was a short, nondenominational prayer that the New York Board of Regents had caused to be written for use by school districts that wished to open the school day with a prayer.

Delivering the opinion of the high court, Justice Hugo Black was sweeping in his insistence that the establishment clause - "Congress shall make no law respecting an establishment of religion"- left no room for any state prayer program, non-denominational or not.

Moreover, Justice Black argued, the Establishment Clause "does not depend upon any showing of direct governmental compulsion," and is violated by government action on behalf of religious belief whether the action operates "directly to coerce nonobserving individuals or not."

Potter Stewart was the one dissenting justice. He charged his brethren with misapplying a "great constitutional principle." Justice Stewart wrote: "I cannot see how an 'official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."

Justice William O. Douglas, concurring with the majority, devoted over half of his opinion to explaining what the case did not involve. …