This Day in Supreme Court History—April 3, 1962

On this day in 1962, Engel v. Vitale, a seminal religious liberty case, was argued at the Supreme Court.

In 1951, the Board of Regents for the State of New York authorized a prayer for recitation at the start of each school day. The prayer read: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.” Students were allowed to opt out of participating.

Five parents of school children—two Jews, an agnostic, a Unitarian, and an Ethical Culturalist—sued the head of the board of education in New Hyde Park, New York, arguing that the prayer violated the First Amendment. The lead plaintiff was Steven Engel, one of the Jewish parents.

Arguing on behalf of the plaintiffs at the Supreme Court, attorney William Butler insisted the prayer doubly violated both the religious liberty provisions of the First Amendment. It violated the Establishment Clause, because the prayer expressed a preference for certain religious beliefs. And it violated the Free Exercise Clause, because it coerced children to participate in a religious proceeding.

Butler relied in particular on Justice Felix Frankfurter’s concurrence in McCollum v. Board of Education, a seminal 1948 Establishment Clause case. The lawyer directly addressed Frankfurter, who was still on the bench when the Court heard McCollum, noting that Engel’s claim relied heavily on the Justice’s “brilliant dissertation” in the McCollum decision in which he wrote, “the law of imitation operates and non-conformity is not an outstanding characteristic of children.”

“So far as I’m concerned, you may assume I remember it,” the Justice responded, eliciting laughter from the audience.

“Would the little child or would Johnny leave the classroom or would the parent be expected to ask the school system to excuse his child or who may be singled out as a non-conformist?” Butler asked. “And I must adopt Mr. Justice Frankfurter’s thesis in McCollum that the law of imitation applies and little children want to be with other little children.”

Butler explained that most of his five clients were religious and not opposed to prayer, but that it should not be incorporated into a public school system. Such incorporation is “the beginning of the end of religious freedom,” he said.

Justice William O. Douglas noted that when the justices enter the Supreme Court courtroom, there is an announcement, “God save the United States.” “Is that case on its way here?” the Justice asked Butler. “If it is, I’m glad I’m not bringing it,” Butler replied.

Butler also borrowed from language in Chief Justice Earl Warren’s opinion in Brown v. Board of Education, where Warren wrote that “to separate children from one another solely because of their color may leave an indelible mark upon that child for the rest of his life.” Butler argued religious separation would also be an “unfair separation” which could leave an indelible mark on a child’s mind.

To his opponents’ argument that his clients were a minority trying to impose its views on the majority, Butler explained: “Our answer to that is simple. We say that the Constitution, the very purpose of the Constitution, is to protect the minority against the majority. It’s to protect the weak against the strong in matters of keeping separate forever the functions of the civil and the religious.”

To Justice Potter Stewart observation that the prayer did not specifically address a Christian God, Butler replied that the Board of Regents’ decision about the prayer referred the God as “him,” and Judaism does not necessarily believe in a male god. “It believes that God is coming,” he said. “Now what form that God is going to take may be a different matter.” Butler also argued the prayer excludes Orthodox Jews because such Jews pray only in synagogues, only with yamakas on, only in Hebrew and some pray only facing east.

Stewart also asked Butler whether he objects to the recitation of the National Anthem with the words “Under God.” Butler said he does not object to the recitation of the anthem in schools because it is essentially a “political utterance” and not a religious one.    

Representing the Board of Education, attorney Bertram Daiker said the district received only one request since 1958 for a student to be excused from participation in the prayer, and no requests to be excused from a classroom. The Declaration of Independence has four references to “the Creator,” and the Supreme Court had “said many times that ‘we are essentially a religious people,’” he said.

Chief Justice Warren challenged Daiker by asking whether he would approve of the Court’s requiring every litigant before it to deliver the prayer in question. Daiker said he would not approve because such a compulsion would be unconstitutional. Justice Hugo Black pressed him on whether the children’s enrollment and attendance were compulsory. Daiker countered that most of the district’s parents know their children can opt out of the prayer.

Justice Warren stated that Butler’s clients object to the recitation of a prayer in schools “where they will be indoctrinated with the prayer as a matter of training and where they will be held up to contempt or ridicule if they or their parents should want them to be excused and pointed out as being different from the rest of the children.” Daiker responded, stating the prayer is not the teaching of religion, but merely “acknowledging publicly that we have a god.”

Also defending the law at the High Court was Porter Chandler, who represented sixteen parents who supported the prayer. He argued his clients “feel very strongly that it is a deprivation of their children’s right to a share in our national heritage and that it is a compulsory rewriting of our history in the fashion of George Orwell’s 1984 to do what these petitioners are now seeking to do.”  Chandler also stated that states in at least half of country included daily prayers, Bible readings, or hymns in their public schools.

On June 25, 1962, the Court ruled 6-1 in favor of Engel, holding that the state-mandated prayer, despite its nondenominational character and the possibility of a student opt-out, violated the First Amendment. Justices White and Frankfurter did not take part in the decision; Justice Stewart dissented.


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