Notre Dame Law School NDLScholarship Journal Articles Publications 1964 The eM aning of "Religion" in the School Prayer Cases Charles E. Rice Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Education Law Commons, First Amendment Commons, and the Religion Law Commons 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 agnosticism 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 sect or combina- Supreme Court's definition of reli- was the purpose of the establishment tion of sects. 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 faith", 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 God 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 Christianity 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 freedom of religion is meant the setting up or amnong the various sects of theistic religious worship. An attempt to level all religions, 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 belief 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 Thomas Jefferson and Andrew Jackson, ence to one's views of his relations to advance, Mahometanism, or Judaism, 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 Baptists 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 theism, 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 nontheism 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 atheism and President to pro- gress called on the agnosticism. This conclusion, appar- claim a national day of thanksgiving .. The essence 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 belief in God.