ENGEL V. VITALE
In 1962, the Supreme Court struck down a statesponsored prayer in New York public schools in Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601, the first in a line of decisions banning school prayer. In finding a 22-word voluntary prayer unconstitutional, the Court opened
a Pandora’s box. For the next four decades, pub-
lic anger brought many calls for a constitutional
amendment to restore what Engel took away. On
the other hand, the ruling was a landmark vic-
tory for church-state separationists who marked
it as the beginning of a new era in FIRST AMENDMENT doctrine.
The origins of the case lay in a controversial
education project in the early 1950s, started by
the New York BOARD OF REGENTS, a bipartisan
citizen commission appointed by the New York
State Legislature to oversee state schools. The
regents set out to recommend a plan for “moral
education,” the most controversial part of which
included prayer. Religious leaders naturally dif-
fered over the wording of a proposed prayer
intended to be recited by students each morn-
ing, but in 1951, a compromise resulted in what
they hoped would be an inoffensive solution.
Included as part of the regents’ Statement on
Moral and Spiritual Training in the Schools, the
prayer went: “Almighty God, we acknowledge
our dependence upon Thee, and we Beg Thy
blessings upon us, our parents, our teachers and
our country.”
Going out of their way to avoid trouble, the
regents made the prayer entirely optional. Both
local school boards and parents could decide if it
would be used. Nevertheless, its authors had not
written it only to try their hand at prayer mak-
ing. “We believe,” they wrote, “that this State-
ment will be subscribed to by all men and
women of good will, and we call upon all of
them to aid in giving life to our program.” But
fearing religious and legal controversy,New York
school districts shunned the prayer. They had
good reason: not only was the state quite ethni-
cally and religiously diverse, but also religious
instruction in public schools had been declared
unconstitutional by the U.S. Supreme Court in
1948 (McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 549). Most school districts followed the lead of New York City,
deciding against adopting the prayer. Only
about 10 percent of them were using it by the
late 1950s.
In 1958, the prayer provoked a lawsuit
(Engel). Five parents of students in the small sub-
urb of New Hyde Park, Long Island, brought suit
to stop its use in their schools. Two parents were
Jewish, the third was Unitarian, the fourth was a
member of the Ethical Culture Society, and the
fifth was a self-professed atheist. They believed
that the school system was coercing their chil-
dren into saying the regents’ prayer, even though
individually, their children could be excused
from participating. The difficulty of granting
children the permission to step out of the room
during recitation of the prayer had, they argued,
made the prayer effectively compulsory. Fur-
thermore, voluntary or not, they said, the prayer
violated the Establishment Clause of the First
Amendment (“Congress shall make no law
respecting an establishment of religion”). The
parents received substantial help in their suit
from the AMERICAN CIVIL LIBERTIES UNION
(ACLU), which had been advocating strict sepa-
ration of church and state for many years.
At first, the lawsuit failed. The plaintiffs
asked the New York State Supreme Court—act-
ing as a trial court—to stop use of the prayer. It
refused. Justice Bernard S. Meyer found the
prayer clearly religious, but not a violation of the
First Amendment. Instead, he ordered school
districts to set up safeguards against “embarrass-
ments and pressures” upon children who did
not wish to participate. The New York Appellate
Division upheld the decision. So did the state’s
Court of Appeals, by a vote of 5–2. It said the
nation’s founders had designed the Establish-
ment Clause to prohibit adopting an official reli-
gion or favoring a particular religion. “They
could not have meant to prohibit mere profes-
sions of belief in God,” the court held, “for if that
were so, they themselves in many ways were vio-
lating the rule when and after they adopted it.”
After agreeing to review the case, the U.S.
Supreme Court heard oral arguments on April 3,
1962. Attorney William J. Butler made the fol-
lowing case for the plaintiffs: all state support to
religion violates the First Amendment, and the
prayer constituted the “teaching of religion in a
public institution” and should therefore be
banned. Several powerful groups joined the
plaintiffs by filing FRIEND-OF-THE-COURT briefs.
These included the ACLU; the American Jewish
Committee, joined by the ANTI-DEFAMATION
LEAGUE of B’nai B’rith; the Synagogue Council
of America, joined by the National Community
Relations Advisory Council; and the American
Ethical Union. These organizations took differ-
ent positions. The American Ethical Union saw
the prayer as “governmental preference for the-
ism in violation of the First and Fourteenth
Amendments.” The Synagogue Council argued
that any school prayer was unconstitutional—
even if voluntary—because it constituted “state
aid to religion.”
The school board defended the prayer on
several grounds. It cited the second part of the
First Amendment’s religious guarantees, the
Free Exercise Clause (“or prohibiting the free
exercise thereof ”). The prayer was an example
of free exercise, Attorney Bertram B. Daiker
argued, that fell far short of establishing a reli-
gion because it was optional, not compulsory.
Daiker also found authority in the nation’s tra-
ditions, calling the prayer “fully in accord with
the tradition and heritage that has been handed
down to us.” Like the plaintiffs, the school board
had powerful friends in court. Briefs supporting
the prayer came from 19 state attorneys general
who also saw religious and national tradition
under attack. The attorneys general said the
nation’s founders “would be profoundly
shocked” by the lawsuit.
On June 25, 1962, the groundbreaking deci-
sion was delivered. By a 7–1 majority, the
Supreme Court found the prayer unconstitu-
tional (the ninth justice, BYRON R. WHITE, did
not participate because he did not assume his
seat on the court until two weeks after the case
had been argued). Justice HUGO L. BLACK’s
majority opinion called the prayer “wholly
inconsistent” with the Establishment Clause. A
considerable series of precedents existed from
1940 on for the ruling, but Black did not cite
them. Instead, he recalled the bitter history of
church-state conflict in England and colonial
America, noting that by the time the Constitu-
tion was written, “there was a widespread aware-
ness among many Americans of the dangers of a
union of church and state.” The First Amend-
ment was added to prevent that union, which
“tends to destroy government and to degrade
religion.” Black scorned the school board’s claim
that the regents’ prayer was harmless. Neither its
brevity nor its voluntary nature nor its nonde-
