After Everson v. Board of Education (1947), fifteen years passed before the next important ‘religion and public schools’ case made its way to the Supreme Court. Whereas Everson dealt with transportation, Engel v. Vitale (1962) addressed the role of the supernatural in the classroom itself.

To this day, many evangelicals blame this case for the collapse of American culture. After the highest court in the land “kicked God out of public school,” there came the sex, the drugs, the decadence, and the disrespect.

Just think – we could have avoided disco altogether if nine old men in robes could have restrained their humanistic tendencies for just a few more decades.

But I’m getting ahead of myself.

Sometime in the 1950s, the Board of Regents of the State of New York put together a “voluntary,” non-denominational prayer to be recited by students each day. It was pretty tame:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.

But then, a prayer is a prayer.

In 1958, a small group of parents (including Steven Engel, who was Jewish) vocalized their objections to this prayer. The district argued that the prayer was technically voluntary, and that participation was protected by the “free exercise” clause of the First Amendment.

The parents sued, thus landing school board president William Vitale on the other side of the italicized “v.” The case eventually wound up in the Supreme Court, which decided Engel v. Vitale in 1962.

New York’s law promoting prayer – any prayer – in public schools was unconstitutional. Unlike Everson fifteen years earlier, the Court had but one dissenter – Justice Potter Stewart. Like Everson, the Court’s majority opinion was written by Justice Hugo Black.

Black’s written opinion has some golden moments. Let’s gaze into the rhetoric, shall we?

Among other things, these parents challenged the constitutionality… of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion” — a command which was “made applicable to the State of New York by the Fourteenth Amendment…”

If you missed the part about “incorporation” via the 14th Amendment, you might wish to review.

The New York Court of Appeals… sustained an order of the lower state courts which had upheld the power of New York to use the Regents’ prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents’ objection. We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments.

In other words, lower courts had accepted the idea that the prayer was acceptable because it was technically voluntary. ‘Granted certiorari’ (Sir Shoe RHARee) is a fancy way of saying the Supreme Court agreed to hear the case. In Latin it means something like, “OK – inform us!”

The number of petitions to the highest court in the land would quickly prove crippling if Justices were compelled to hear all of them. In most cases, then, it is entirely up to the Court which cases they decide to hear and which they don’t. If they agree to hear the case, they ‘grant certiorari’.

We think that, by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity…

The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage…

Unlike your typical television courtroom drama, most Supreme Court cases prompt multiple amicus curiae, or “friend of the court,” briefs. Pretty much any interested party can submit research, arguments, background, etc., for the Court to consider – even if they’re not directly involved in the case.

Black’s point here is that no one involved was disputing that the prayer was religious. Instead, they were arguing that it was OK that it was religious because Americans are largely people of faith, historically speaking. In short, supporters wanted to frame the prayer as more like a Christmas Tree than a Cross.

Justice Black then dives into a history lesson on the subject, as he was wont to do. The gist of it is that America was largely founded by people trying to get away from other people – especially those in government or other positions of power – telling them how to pray and exactly what to believe. The subplot is that government efforts to standardize and mandate faith – however general or ‘voluntary’ – repeatedly caused more problems than they solved.

And you know what they say about those who don’t know their history…

It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies…

Ah, history and its uncomfortable lessons… We fight the power until we become the power, at which point abuse suddenly seems like a really good idea – in everyone’s best interest, in fact – because now it’s ME!

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.

This is a theme we don’t appreciate sufficiently whenever church/state issues arise. It’s not just about “protecting” the government from religious influence; it’s about protecting individuals and their faith from the damage government inherently brings to everything it “improves.”

They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch.

But this safeguard was not enough… The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say — that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office…

Here comes my favorite part. You might want to grab a Slurpee and some popcorn – this is delish!

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that.

Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.

Think about this argument for a moment. Once your personal walk with God becomes just another parking meter demanding quarters or a regulation with which you must comply before adding a shed in the backyard, it’s no longer your reach for the divine – it’s merely another vulgar hoop through which you must jump.

Didn’t someone relatively significant die to overcome this sort of entrenched legalism at some point?

The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith.

Think about modern politics replacing your Holy Spirit. Do you seriously want Donald Trump and Hillary Clinton going back and forth about whether or not baptism requires immersion? John Bennett and Emily Virgin on a committee together to determine whether or not Jesus is OK with you changing churches twice in the same year?

I can’t wait to hear what Governor Fallin and Preston Doerflinger determine about how much tithe God intends for you to pay, and where it should best be applied. And if you argue against them, you’re part of the godless liberalism pervading our once great nation. Good times!

That may sound like it’s a far cry from “we beg Thy blessings upon us,” but whether you’re a lefty or a righty, you know how slippery government slopes tend to be. Chutes and ladders, kids.

Lest we think the Court is suggesting secular government should instead be in some way hostile towards faith, Black goes again to history. On behalf of the Court, he acknowledges not only the role of religion, but it’s power in shaping the best of the New World’s aspirations.

The excerpt is a bit lengthy, but well-worth some mastication:

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong.

The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that “More things are wrought by prayer than this world dreams of.”

It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.

And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either.

They knew, rather, that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

We don’t separate church and state because we’ve forgotten the role of faith in our creation; we separate them because we remember.

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Prior to the 14th Amendment, the protections offered by the Bill of Rights applied primarily to the Federal Government. While most States had similar protections in their own constitutions, these were inconsistent and locally interpreted.

The 14th Amendment changed all of that in ways neither immediate nor obvious. Passed in 1868 as part of the ‘Reconstruction Amendments,’ its initial intent was to guarantee full and equal citizenship for Freedmen – newly freed Black Americans.

It reads, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the first time that the States had been specifically targeted this way. It chipped away substantially at the wall separating State and Federal power – with central authority clearly coming out ahead.

Still, several generations passed before the Supreme Court began regularly interpreting the Fourteenth Amendment as a means of “incorporation” – applying the Bill of Rights to the States by way of that part about “equal protection.”

In 1947, this gradual “incorporation” finally crossed into the realm of public schooling. Well… sort of.

It made it as far as the bus.

New Jersey regularly reimbursed parents whose children rode public transportation to school. This sounds strange in the Midwest, where fleets of bouncy yellow school busses are a seasonal hallmark, but it’s not unusual in larger cities even today. Why duplicate something already in place and working, running up costs and clogging everything up unnecessarily? They’re not Congress, after all.  

Children who attended parochial Catholic schools were entitled to the same assistance. A local taxpayer challenged this on the basis that it was government support for religion – that his tax dollars were being used to make it easier for children to attend Catholic indoctrination.

The case eventually reached the Supreme Court as Everson v. Board of Education of the Township of Ewing (1947). The central question was whether New Jersey’s reimbursement to parents for the cost of sending their darlings to private religious schooling violated the Establishment Clause of the First Amendment as applicable to the states through the Fourteenth Amendment.

The short answer was no, New Jersey wasn’t violating anything. The bus thing was fine.

The Court’s decision was split 5-4, which doesn’t make it any less binding, but certainly makes the discussions more interesting. Justice Hugo Black, writing for the majority, argued that busing in this case was comparable to police or fire department protection, and that refusing parochial school students the same government services as public school students would in fact violate the Free Exercise clause of the First Amendment.

But the Supreme Court doesn’t just rule yay or nay. They write about why they decided what they did, and any Justices who disagree write about why they disagree. It can be tedious reading, but there are often nuggets of mirth or pith sprinkled amongst the elucidation.

For example, in Justice Black’s majority opinion:

The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects… First. They authorize the State to take by taxation the private property of some and bestow it upon others to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment.

One argument by the petitioner – the guy who originally complained about his tax dollars being used this way – was that the Fourth Amendment guarantees him “due process” before the government can take his stuff. Essentially he argued that the government was acting as a sort of Papal Robin Hood, appropriating his money for redistribution against his will.

Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states.

That’s the part that got this one into the history books, and why we’re talking about it here.

First. The due process argument that the state law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public’s interest in the general education of all children…

But the New Jersey legislature has decided that a public purpose will be served by using tax raised funds to pay the bus fares of all school children, including those who attend parochial schools… The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need.

In other words, it’s fine for the state to dedicate public funds to bus fare for all kids – whatever type of school they’re attending – because it serves a broader and legitimate government purpose benefitting all citizens.  

Not everyone needs the fire department the same. Not everyone calls the police the same number of times. But that doesn’t matter, Black explains, because those services aren’t about individuals – they’re about the larger ‘social contract’. They’re about ALL of us being better off when those around us are safe and whole.

And educated.

Modern civilization is built on the understanding that we’re all willing to give up a bit of our individual freedom – our short-term self-interest – in order to benefit the whole. This is the social contract at its most basic.
We cooperate not because it’s nice, or because it makes us feel like good people – we do it because in the end, we each benefit from this collective action. We behave unselfishly, but for self-serving reasons.

It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax raised funds were to be expended was not a public one… But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution…

Sit up straight and pay attention – here comes a really good part:

Otherwise, a state’s power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states…

According to our founding documents, the primary function of national government is the protection of property – our life, our liberty, and our stuff – but if Justice Hugo is correct, one essential function of state government is coordinating and administering the collective good. The social contract.

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…

Justice Black then proceeds to offer an extensive history lesson in the necessity of the Establishment Clause. It’s too long to reproduce here, but certainly worth reading. It even contains the wonderful phrase, “Baptists were particularly obnoxious” – which out of context makes a great teaser for the rest, yes?  

The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion…

Seventy years later, we still encounter similar ‘difficulties’ from time to time.  

The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority…

Just a reminder that it works both ways. Yes, the Framers wanted to keep secular power out of religious control. But they also wanted to avoid secular interference in matters of faith. Historically, overt cooperation between church and government works out poorly more often than not.  

{W}e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.

That was the key. It’s a tricky balance, the Court acknowledges, but in this case a balanced understanding dictates that the bus thing is fine.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.

When every opinion you issue potentially shapes the logistics and ideology of an entire nation, you want to be as specific as possible regarding what you do and don’t mean by them.

There were two dissenting opinions, including one by Justice Robert Jackson which is both passionate and amusing. At one point he makes rather naughty use of Lord Byron.

Unfortunately, we’re out of time. You’ll just have to look it up on your own.

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