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1964 The eM aning of "" in the School Cases Charles E. Rice Notre Dame Law School, [email protected]

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Recommended Citation Charles E. Rice, The Meaning of "Religion" in the School Prayer Cases, 50 A.B.A. J. 1057 (1964). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/7

This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. The Meaning of "Religion" in the School Prayer Cases

The Supreme Court has read into the establishment clause of the First Amendment a definition of the word "religion" which is proper only to the free exercise clause of that amendment, the author asserts. In employing this improper definition under the establishment clause in the school prayer cases, the Court has tended to institutionalize as the official public religion.

by Charles E. Rice * Associate Professor, Fordham University School of Law

IN THE CONTROVERSY over the eminence, or two combine together, toward theistic religion, so long as no school prayer decisions, both sides have and establish a religion to which they substantial partiality was shown toward 2 virtually ignored the incongruity of the would compel others to conform." It any particular theistic or combina- Supreme Court's definition of reli- was the purpose of the establishment tion of . gion. For, in fact, the Court has read clause, then, to prevent the prescrip- into the establishment clause of the tion by Congress of "a national ", Historical Meaning First Amendment a definition of the that is, a nationally established official of the First Amendment word which is proper only to the church.' Justice Joseph Story, who served free exercise clause of that amend- It has been asserted, and incorrectly on the Supreme Court from 1811 to ment. The effect of this quiet muta- so, that the establishment clause or- 1845 and who was a leading Unitari- tion is far-reaching indeed. dained a governmental abstention an, confirmed the plain historical That part of the First Amendment from all matters of religion, a neu- meaning of the First Amendment: which deals with religion reads: trality, as it were, between those who Probably at the time of the adoption "Congress shall make no law respect- believe in and those who do not. of the Constitution, and of the first ing an establishment of religion, or An examination of the history of the amendment to it ... the general if not the universal sentiment in America. was, prohibiting the free exercise thereof clause, however, will not sustain that that ought to receive en- * . .". The original meaning of the analysis. Its end was neutrality, but couragement from the state so far as first clause is clear. Said Judge only of a sort. It commanded impar- was not incompatible with the private Thomas Cooley: "By establishment of tiality on the part of government as rights of conscience and the is meant the setting up or amnong the various sects of theistic religious . An attempt to level all , and to make it a matter of recognition of a state church, or at religions, that is, religions that pro- state policy to hold all in utter indiffer- fess a in God. But, as between least the conferring upon one church ence, would have created universal dis- of special favors and advantages theistic religions and those nontheis- approbation, if not universal indigna- which are denied to others."1 The tic creeds that do not acknowledge tion. amendment was prompted by the cir- God, the precept of neutrality under cumstance that, in the words of James the establishment clause did not ob- 1. COOLEY, PRINCIPLES OF CONSTITUTIONAL LAW, tain. Government, conformably to the 224 (1898). Madison during the debate in Con- 2. 1 ANNALS Or CONG. 731 (1789). gress over its adoption, "the people establishment clause, could generate 3. Corwin, The Supreme Court as National School Board, 14 LAW & CONTEMP. PROS. 3, 11-12 feared one sect might obtain a pre. an affirmative atmosphere of hospitality (1949).

November, 1964 e Vol. 50 1057 The Meaning of "Religion"

The real object of the amendment 3, 1789, and every President, except said, "The term 'religion' has refer- was not to countenance, much less to and Andrew Jackson, ence to one's views of his relations to advance, Mahometanism, or , has followed suit. his Creator, and to the obligations they prostrating Christian- or infidelity, by impose of reverence for his being and ity; but to exclude all rivalry among Would it not have been extraordi- Christian sects, and to prevent any nary for Congress to request a public character, and of obedience to his will." national ecclesiastical establishment day of prayer to be observed by "the In the Davis case, the Court held that which should give to a hierarchy the people of the United States" and on the federal law prohibiting polygamy exclusive patronage of the national 4 the very same day to propose a con- was not an infringement upon the re- government. stitutional amendment to prohibit that ligious freedom of the defendant. Logically, this means that for pur- very type of prayer? Indeed, the spe- It is obvious, however, that believ- poses of the establishment clause non- cific religious issue was raised by Rep- ers in nontheistic creeds, such as athe- theistic beliefs were riot considered to resentative Thomas Tucker of South ists and agnostics, should be protcctcd be religions. Otherwise, an affirmation Carolina in the debate preceding the in the free exercise of their religion as by government that there is a God adoption of the resolution. Mr. Tucker fully as are and Presbyterians. would be a governmental preference, objected that calling on the President And it ought not to be inferred, from through the assertion of the essential to proclaim a day of prayer "is a busi- the theistic definition of religion em- truth of , of a combination of ness with which Congress have nothing ployed by the Court in the Davis case religious sects, i.e., those that believe to do; it is a religious matter, and, as that, if the issue were presented to it, 6 in God, to the disparagement of those such, is proscribed to us." Congress, the Supreme Court would not have ac- other religions which do not profess however, passed the resolution. corded the protection of the free exer- such a belief. On the contrary, rather If the question of Congress's compe- cise clause to atheists and agnostics than regarding theism and tence in religious matters had not been even at the time when the Court was as merely variant religious sects with- raised, it could possibly be said that it formulating its theistic definition of re- in a broadly defined category of "re- had never occurred to the members ligion. The equity and reason of the ligion". the establishment clause re- and therefore the action of Congress matter are plain. Moreover, as Mr. garded theism as the common denom- ought not to be conclusive on the point. Justice Brennan properly acknowl- inator of all religions, and nontheism When, however, the issue was squarely edged in his concurring opinion in the it considered not to be a religion at all. joined, the First Congress deliberately Schempp case : Government itself could profess a be- overrode the same objections we hear [O]ur religious composition makes us so often today and voted to offer pub- lief in God, and, so long as a practical a vastly more diverse people than were neutrality was maintained among the- lic prayer to God. our forefathers. They knew differences istic sects, the neutrality command of chiefly among Protestant sects. Today the establishment clause would not be Definitions of Religion the Nation is far more heterogeneous breached. Are Given by the Court religiously, including as it does sub- stantial minorities not only of Catholics That it was not a purpose of the es- The history and informed logic of and Jews but as well of those who wor- tablishment clause to forbid such a the establishment clause, therefore, ship according to no version of the profession by government of the truth lead to the conclusion that its defini- Bible and those who worship no God at 8 of theism, or to forbid all official gov- tion of religion was similar to that used all ernmental sanction of public prayer, by Chief Justice Hughes in his dis- It is correct beyond dispute that the by the fact that on September is shown senting opinion in a 1931 case involv- scttled protections of the free exercise 24, 1789, the very same day that it ing the eligibility of a pacifist for clause ought to be extended today to approved the First Amendment, Con- naturalization: such nontheistic creeds as and President to pro- gress called on the agnosticism. This conclusion, appar- claim a national day of thanksgiving .. . The of religion is belief in a relation to God involving duties ently, determined the decision in Tor- and prayer, in the following resolution: superior to those arising from any hu- caso v. Watkins, 367 U. S. 488 (1961), man relation .... One cannot speak in which the Court invalidated a pro- That a joint committee of both of religious liberty, with proper appre- vision of the Constitution of Maryland Houses be directed to wait upon the ciation of its essential and historic sig- President of the United States to re- nificance, without assuming the exist- requiring a state employee to declare quest that he would recommend to the ence of a belief in supreme allegiance his . The test, said Jus- 7 people of the United States a day of to the will of God. tice Black for the Court, unconstitu- public thanksgiving and prayer, to be tionally invaded the employee's "free- observed by acknowledging, with grate- For many years, it was assumed that ful hearts, the many signal favors of the same definition of religion applied dom of belief and religion". The re- Almighty God, especially by affording to the free exercise clause of the First them an opportunity peaceably to es- Amendment, so that the clause, it could 4. STORY, COMMENTARIES ON THE CONSTITUTION tablish a Constitution of government OF THE UNITED STATES § 1874 and 1877 (1891). for their safety and .5 be argued, protected only theistic be- 5. 1 ANNALS OF CONG. 949 (1789). liefs against governmental prohibition. 6. 1 ANNALS Or CONG. 950 (1789). 7. United States v. Macintosh, 283 U. S. 605, President Washington issued the Thus, in Davis v. Beason, 133 U. S. 633-634 (193t). 8. Abington Schoot District v. Schen pp, 374 thanksgiving proclamation on October 333 at 342 (1890), the Supreme Court U. S. 203, 240 (1963).

1058 American Bar Association Journal The Meaning of "Religion"

quirement was invalid because "The theistic religions described in Justice power and authority of the State of Black's footnote in the Torcaso case. Maryland thus is put on the side of one Of the four nontheistic religions men- particular sort of believers-those who tioned by him, the two most important are willing to say they believe in 'the in contemporary terms are Ethical '." The Court went on Culture and Secular , which to spell out the entitlement of nonthe- are nontheistic in that they do not istie beliefs to protection as religions: affirm the existence of God. It is reasonable also to include unorganized We repeat and again reaffirm that atheism and agnosticism within the neither a State nor the Federal Govern- ment can constitutionally force a per- Torcaso definition of nontheistic reli- son "to profess his belief or disbelief in gion. While atheism flatly rejects a any religion." Neither can constitution- belief in the existence of God, agnosti- ally pass laws or impose requirements cism is: "The doctrine that neither the which aid all religions as against non- existence nor the nature of God, nor believers, and neither can aid those religions based on a belief in the exist. the ultimate origin of the universe, is ence of God as against those religions known or knowable . . .",j Atheism 9 founded on different beliefs. [Empha- and agnosticism are both compatible Charles E. Rice was educated at sis added.] with Ethical Culture and Secular Hu- Holy Cross (A.B. 1953), Boston manism; they arc as much entitled to Appended to the last quoted clause College (LL.B. 1956) and New constitutional treatment as religions as was a footnote specifying that: "Among York University (LL.M. 1959, are those latter beliefs. religions in this country which do not J.S.D. 1962). In addition to teach what would commonly be consid- The vice of the Torcaso case is that articles and reviews, he has ered a belief in the existence of God are the Court did not spell out the grounds written two books, Freedom of , , Ethical Culture, of the ruling and did not limit its new Association (1962) and The Su- and others." and broader definition of religion to the preme Court and Public Prayer: The Court's reliance on Mr. Tor- area of free exercise rather than that of The Need for Restraint (1964). caso's "freedom of belief and religion" establishment. Regrettably, the Su- leaves some doubt as to whether the preme Court has now taken its Toreaso of the state or Federal Government decision rests on establishment clause definition of religion and applied it would be placed behind the tenets of or free exercise clause grounds. How- without apparent reservation to the es- one or of all orthodoxies". Engel and ever, it probably did rest on the latter, tablishment clause. Schempp, of course, were decided sole- and the decision is supportable in that In the first of the school prayer de- ly as establishment clause cases. And, sense, because the free exercise clause cisions,11 the Court did not cite any to emphasize the content of the neu- ought to interdict states Iassuming, as cases in support of its determination. trality which it now finds in the es- the Court has held, that the First The ruling seemed to rest on an as- tablishment clause, the majority opin- Amendment is applied fully to the sumed incapacity of government, un- ion in Schempp quoted in support an states through the due process clause der the First Amendment, to write or extract from Torcaso explicitly adopt- of the Fourteenth Amendment) from sanction "official " of any type, ing the broad definition of religion: at least in public schools. The barring nonbelievers in God from gen- Court We repeat and again reaffirm that eral state employment. did not dwell on the reason for the in- neither a State nor the Federal Gov- capacity, but it was intimated by Jus- ernment can constitutionally force a Two Types of Religions tice Black, speaking for the majority, person "to profess a belief or disbe- when he noted in passing: "When the lief in any religion." Neither can con- Are Now Protected re- power, prestige and financial support stitutionally pass laws or impose In view of the holding in Torcaso, it quirements which aid all religions as may now be said that there are two of government is placed behind a par- against non-believers, and neither can general types of religions entitled to ticular religious belief, the indirect co- aid those religions based on a belief in ercive pressure upon religious minori- the existence of God as against those the protections of the First Amend- 12 ties to conform to the prevailing offi- religions founded on different belieIs. ment. [Emphasis added.] On the one hand are those which cially approved religion is plain" (em- profess a belief in God. For purposes phasis added). What Justice Black In view of the increased variety in of discussion, let us call them theistic, hinted at here was the same concept of our religious composition, it is quite and for analysis we shall include there- neutrality explicitly found controlling proper for the Court to construe the in both deistic and theistic beliefs in one year later in the Schempp case. 9. 367 U. S. at 495. God with their variant interpretations There Justice Clark rested his opin- 10. WEBSTER'S NEW INTERNATIONAL DICTIONARY, of the nature of God and His provi- ion for the Court on "the concept of UNABRIDGED (Second Edition). 11. Engel v. Vitale, 370 U. S. 421 (1962). dence. neutrality", which operates to prevent 12. 374 U. S. at 220, citing from opinion of Justice Black for the Court in Torcaso v. Wat- On the other hand are those non- a situation where the "official support kins, 367 U. S. 488, 495 (1961).

November, 1964 * Vol. 50 1059 The Meaning of "Religion" establishment clause to bar a law re- key the Court is likely to use to decide nontheistic position through the in- specting a real "establishment", in the if an exercise is "religious" or merely a plicit assertion that, as a matter of limited historical sense of the word, of harmless "patriotic or ceremonial" one. state policy, the existence of God is either a theistic or nontheistic sect. That is, if it is to be taken seriously, unknown or unknowable. In the school But the Court has gone much further it is therefore at least in part a "reli- prayer cases the Court appears to have and is construing the clause, with its gious exercise", and as such it is pro- adopted an agnostic approach which is newly incorporated definition of reli- hibited by the First Amendment. Only incompatible, in its treatment of the gion, in absolutist terms, affirming that if it is a mere affirmation of the histori- basic question of God's existence, with our "constitutional policy" denies, when cal fact that the founders believed in the basic theistic affirmation which was "religious training, teaching or observ- the overlordship of God, or that some theretofore embedded in our law and ance" are concerned, "that the state Americans now so believe, and only if tradition. can undertake or sustain them in any it scrupulously avoids any affirmation It is not my purpose here to discuss form or degree". 13 of the truth or falsity of that belief in the possible extensions of the school In his seventy-four page concurring God, can the observance be insulated prayer decisions. Rather, I am con- opinion in Schempp, Justice Brennan from constitutional attack. cerned only with the thought that the probed the deeper meaning of the This rationale necessarily would pre- unqualified incorporation of the broad Court's ruling and strained to demon- vent an affirmation by a teacher or definition of religion into the estab- strate that the decision was not a pre- other government official that, in fact, blishment clause is perhaps the root cursor of further extreme rulings. Yet the Declaration of Independence is fallacy in the Court's reasoning. In the best he could do on the words "un- true when it asserts that men are en- order to avoid an institutionalization der God" in the pledge of allegiance dowed "by their Creator" with un- of agnosticism as the official public re- was to say that: "The reference to di- alienable rights or when it asserts the ligion of this country, the Court vinity in the revised pledge of alle- existence of "the laws of nature and of ought to acknowledge that nontheistic giance, for example, may merely rec- nature's God", a "Supreme Judge of religions are not entitled to such un- ognize the historical fact that our Na- the world" and "". qualified recognition under the estab- tion was believed to have been founded In the nature of things, government- lishment clause as to bar even a simple 'under God'." al neutrality on the question of God's governmental affirmation that in fact The pledge, in Justice Brennan's existence is unattainable. A govern. the Declaration of Independence is view, is merely one of "the various mental assertion that God does in fact true when it states the existence of patriotic exercises and activities used exist is a preferential affirmation of the God. in the public schools and elsewhere truth of theism; an assertion that God which, whatever may have been their does not exist is a preference of athe- 13. Abington School District v. Scherupp, 374 of U. S. 203, 218 (1963), quoting from dissenting origins, no longer have a religious pur- ism; and a perpetual suspension opinion of Justice Rutledge, joined by Justices pose or meaning".' 4 judgment by government on the ques- Frankfurter, Jackson and Bnurton, in Everson v. Board of Edvcation, 2.30 U. S. 1, 52 (1947). Justice Brennan has supplied the tion is an adoption of the agnostic, 14. Quotations from 374 U. S. 303, 304.

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