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Engel v. Vitale and Jefferson's "Wall of Separation"
None of this history of the Establishment Clause, however, restrained the Supreme Court in 1962 in its school prayer decision. In Engel, the Court ignored both the historical meaning of an establishment of religion and the Establishment Clause’s history. The Court in this case applied an unhistorical meaning of religious establishments and claimed an unwarranted jurisdiction to regulate religious practices in the states.
Engel v. Vitale came before the Court as a dispute about a prayer. The state of New York, acting through its Board of Education, had approved a prayer to be recited at the beginning of each school day for the stated purpose of “moral instruction.” The children of parents or guardians who did not want them to participate in the exercise were excused from reciting the prayer. Lawyers for the plaintiffs argued, however, that the prayer offended their clients’ religious sensibilities and was an establishment of religion, even though reciting it was voluntary, because an agency of the state of New York had approved the prayer. That no governmental benefit was bestowed on any specific church by the prayer’s recitation, that the prayer was nondenominational, and that participation in its recitation was voluntary meant nothing to the plaintiffs’ lawyers. This was the prayer at issue: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.”
Lawyers for the state of New York pointed out that this nondenominational prayer acknowledging man’s dependence on God as the source of blessings was intended to serve the purpose of moral education only for those students whose parents wanted them to recite it. It was not a mandatory prayer. The plaintiffs’ lawyers reiterated that the prayer offended the sensibilities of their clients and represented to them an establishment of religion. Therefore, it was a violation of their clients’ right (according to their understanding of the First Amendment) to be federally protected from establishments of religion. That argument ignored the palpable fact that the purpose of the Establishment Clause, as the House and Senate revised it and three-fourths of the states ratified it, was to forbid the federal government from regulating religious practices in the states. Nevertheless, the Supreme Court embraced the plaintiffs’ reasoning and ruled that approval by a state of a brief, voluntarily recited, nondenominational prayer constituted an establishment of religion—and moreover, that the establishment of religion by any level of government in the United States was unconstitutional.
Now, nearly fifty years on from Engel, the logic of this decision has become second nature for many Americans. Certainly, our history textbooks celebrate it as an achievement in the march of American liberty. But what did the decision really mean? In fact, the Supreme Court was canceling the free-exercise rights of those parents in the state of New York who wanted their children to recite the prayer the state’s Board of Education had approved. The Court justified depriving them of their free-exercise right under the First Amendment by trumping that right with the Establishment Clause, thus using one provision of the Constitution to cancel another provision. In effect, the Court regarded the Free-Exercise Clause as if it did not exist; or at least, the Court regarded it as radically subordinate to the apparent—but unhistorical—value of secularity which was deduced from the Establishment Clause. Moreover, the Court ignored the fact that recitation of the prayer in question neither conferred any governmental benefit on a particular religious denomination nor showed an exclusive preference for one religion over other religions—both of those results being inherent purposes of religious establishments.
What about the famous “wall of separation between Church & State” that Thomas Jefferson referred to in his letter of January 1, 1802, to the Baptists of Danbury, Connecticut? The major political issue lying behind this letter was President Jefferson’s refusal to declare a day of thanksgiving (to God) for a peace treaty just reached between France and Britain. The Anglo-French conflict had threatened to draw the young American nation into war, and on a rather less momentous occasion in 1796, President Washington had himself declared a day of national thanksgiving. Jefferson’s stance would seem to indicate a settled conviction against any even symbolic connection between religion and government generally. But here it must also be observed that Jefferson, as governor of Virginia in 1779, had proclaimed a day of fasting and prayer in that state when requested to do so.
Based on this historical record, a natural inference is that Jefferson did not think that he had, as president of the United States, the constitutional power to authorize a national religious exercise. In other words, Jefferson saw in the Constitution confirmation of the reserved right of the states to regulate religious matters and a denial to the federal government of the power to do so. We can be certain that such was his understanding of the First Amendment because he said as much in his most public statement on the separation of church and state, which was also his most emphatic statement on the issue. The occasion was his second inaugural address in 1805, in which he declared to the whole country, “In matters of religion, I have considered its free exercise is placed by the Constitution independent of the powers of the general [i.e., federal] government.” In other words, Jefferson’s wall metaphor in his 1802 letter was referring to the First Amendment’s prohibition of federal interference with the authority of the states in religious matters. It was a wall to prevent federal trespass. On the issue of religion, as with other matters, Thomas Jefferson emerges as a believer in what might be called states’ rights.