Rosenfeld Susan. Encyclopedia of American Historical Documents

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Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority . . .” It is clear that the cause

of action is one which “arises under” the Federal Consti-

tution. The complaint alleges that the 1901 statute effects

on apportionment that deprives the appellants of the equal

protection of the laws in violation of the Fourteenth

Amendment. Dismissal of the complaint upon the ground

of lack of jurisdiction of the subject matter would, there-

fore, be justified only if that claim were “so attenuated and

unsubstantial as to be absolutely devoid of merit,” . . . or

“frivolous.” . . . Since the District Court obviously and cor-

rectly did not deem the asserted federal constitutional

claim insubstantial and frivolous, it should not have dis-

missed the complaint for want of jurisdiction of the subject

matter. And of course no further consideration of the mer-

its of the claim is relevant to a determination of the court’s

jurisdiction of the subject matter. We said in an earlier vot-

ing case from Tennessee: “It is obvious . . . that the court,

in dismissing for want of jurisdiction, was controlled by

what it deemed to be the want of merit in the averments

which were made in the complaint as to the violation of the

Federal right. But as the very nature of the controversy

was Federal, and, therefore, jurisdiction existed, whilst the

opinion of the court as to the want of merit in the cause of

action might have furnished ground for dismissing for that

reason, it afforded no sufficient ground for deciding that

the action was not one arising under the Constitution and

laws of the United States.” . . .

Since the complaint plainly sets forth a case arising

under the Constitution, the subject matter is within the

federal judicial power defined in Art. III, Section 2, and so

within the power of Congress to assign to the jurisdiction

of the District Courts. . . .

An unbroken line of our precedents sustains the fed-

eral courts’ jurisdiction of the subject matter of federal

constitutional claims of this nature. . . .

* * *

We hold that the District Court has jurisdiction of the sub-

ject matter of the federal constitutional claim asserted in

the complaint.

III.

Standing.

A federal court cannot “pronounce any statute, either

of a state or of the United States, void, because irreconcil-

able with the constitution, except as it is called upon to

adjudge the legal rights of litigants in actual controversies.”

. . . Have the appellants alleged such a personal stake in the

outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination

of difficult constitutional questions? This is the gist of the

question of standing. It is, of course, a question of federal

law.

The complaint was filed by residents of Davidson,

Hamilton, Knox, Montgomery, and Shelby Counties. Each

is a person allegedly qualified to vote for members of the

General Assembly representing his county. These appel-

lants sued “on their own behalf and on behalf of all quali-

fied voters of their respective counties, and further, on

behalf of all voters of the State of Tennessee who are simi-

larly situated. . . .” The appellees are the Tennessee Secre-

tary of State, Attorney General, Coordinator of Elections,

and members of the State Board of Elections; the members

of the State Board are sued in their own right and also as

representatives of the County Election Commissioners

whom they appoint.

We hold that the appellants do have standing to main-

tain this suit. Our decisions plainly support this conclusion.

Many of the cases have assumed rather than articulated

the premise in deciding the merits of similar claims. And

Colegrove v. Green . . . squarely held that voters who allege

facts showing disadvantage to themselves as individuals

have standing to sue. A number of cases decided after

Colegrove recognized the standing of the voters there

involved to bring those actions.

These appellants seek relief in order to protect or vin-

dicate an interest of their own, and of those similarly situ-

ated. Their constitutional claim is, in substance, that the

1901 statute constitutes arbitrary and capricious state

action, offensive to the Fourteenth Amendment in its irra-

tional disregard of the standard of apportionment pre-

scribed by the State’s Constitution or of any standard,

effecting a gross disproportion of representation to voting

population. The injury which appellants assert is that this

classification disfavors the voters in the counties in which

they reside, placing them in a position of constitutionally

unjustifiable inequality vis-a-vis voters in irrationally

favored counties. A citizen’s right to a vote free of arbitrary

impairment by state action has been judicially recognized

as a right secured by the Constitution, when such impair-

ment resulted from dilution by a false tally . . . ; or by a

refusal to count votes from arbitrarily selected precincts

. . . , or by a stuffing of the ballot box. . . .

It would not be necessary to decide whether appel-

lants’ allegations of impairment of their votes by the 1901

apportionment will, ultimately, entitle them to any relief,

in order to hold that they have standing to seek it. If such

impairment does produce a legally cognizable injury, they

are among those who have sustained it. They are asserting

“a plain, direct and adequate interest in maintaining the

effectiveness of their votes . . .” They are entitled to a hear-

ing and to the District Court’s decision on their claims.

“The very essence of civil liberty certainly consists in the

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right of every individual to claim the protection of the laws,

whenever he receives an injury.” . . .

IV.

Justiciability.

. . . We understand the District Court to have read the

cited cases as compelling the conclusion that since the

appellants sought to have a legislative apportionment held

unconstitutional, their suit presented a “political question”

and was therefore nonjusticiable. We hold that this chal-

lenge to an apportionment presents no nonjusticiable

“political question.” . . .

. . . It is argued that apportionment cases, whatever

the actual wording of the complaint, can involve no federal

constitutional right except one resting on the guaranty of a

republican form of government, and that complaints based

on that clause have been held to present political questions

which are nonjusticiable.

. . . Appellants’ claim that they are being denied equal

protection is justiciable, and if “discrimination is suffi-

ciently shown, the right to relief under the equal protec-

tion clause is not diminished by the fact that the

discrimination relates to political rights.”

To show why we reject the argument based on the

Guaranty Clause, we must examine the authorities under

it. But because there appears to be some uncertainty as to

why those cases did present political questions, and specif-

ically as to whether this apportionment case is like those

cases, we deem it necessary first to consider the contours

of the “political question” doctrine.

Our discussion, even at the price of extending this

opinion, requires review of a number of political question

cases, in order to expose the attributes of the doctrine—

attributes which, in various settings, diverge, combine,

appear, and disappear in seeming disorderliness. . . . That

review reveals that in the Guaranty Clause cases and in the

other “political question” cases, it is the relationship be-

tween the judiciary and the coordinate branches of the

Federal Government, and not the federal judiciary’s rela-

tionship to the States, which gives rise to the “political

question.”

. . . The nonjusticiability of a political question is pri-

marily a function of the separation of powers. Much con-

fusion results from the capacity of the “political question”

label to obscure the need for case-by-case inquiry. Decid-

ing whether a matter has in any measure been committed

by the Constitution to another branch of government, or

whether the action of that branch exceeds whatever

authority has been committed, is itself a delicate exercise

in constitutional interpretation, and is a responsibility of

this Court as ultimate interpreter of the Constitution. . . .

* * *

It is apparent that several formulations which vary slightly

according to the settings in which the questions arise may

describe a political question, although each has one or

more elements which identify it as essentially a function

of the separation of powers. Prominent on the surface of

any case held to involve a political question is found a tex-

tually demonstrable constitutional commitment of the

issue to a coordinate political department; or a lack of

judicially discoverable and manageable standards for

resolving it; or the impossibility of deciding without an ini-

tial policy determination of a kind clearly for nonjudicial

discretion; or the impossibility of a court’s undertaking

independent resolution without expressing lack of the

respect due coordinate branches of government; or an

unusual need for unquestioning adherence to a political

decision already made; or the potentially of embarrass-

ment from multifarious pronouncements by various

departments on one question.

Unless one of these formulations is inextricable from

the case at bar, there should be no dismissal for non-justi-

ciability on the ground of a political question’s presence.

The doctrine of which we treat is one of “political ques-

tions,” not one of “political cases.” The courts cannot reject

as “no law suit” a bona fide controversy as to whether some

action denominated “political” exceeds constitutional

authority. The cases we have reviewed show the necessity

for discriminating inquiry into the precise facts and pos-

ture of the particular case, and the impossibility of resolu-

tion by any semantic cataloguing.

But it is argued that this case shares the characteristics

of decisions that constitute a category not yet considered,

cases concerning the Constitution’s guaranty, in Art. IV,

Section 4, of a republican form of government. A conclu-

sion as to whether the case at bar does present a political

question cannot be confidently reached until we have con-

sidered those cases with special care. We shall discover

that Guaranty Clause claims involve those elements which

define a “political question,” and for that reason and no

other, they are nonjusticiable. In particular, we shall dis-

cover that the nonjusticiability of such claims has nothing

to do with their touching upon matters of state govern-

mental organization.

* * *

[Re Luther v. Bordon:] Clearly, several factors were

thought by the Court in Luther to make the question there

“political”: the commitment to the other branches of the

decision as to which is the lawful state government; the

unambiguous action by the President, in recognizing the

charter government as the lawful authority; the need for

finality in the executive’s decision; and the lack of criteria

by which a court could determine which form of govern-

ment was republican.

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1593

But the only significance that Luther could have for

our immediate purposes is in its holding that the Guaranty

Clause is not a repository of judicially manageable stan-

dards which a court could utilize independently in order to

identify a State’s lawful government. The Court has since

refused to resort to the Guaranty Clause—which alone

had been invoked for the purpose—as the source of a con-

stitutional standard for invalidating state action. . . .

Just as the Court has consistently held that a challenge

to state action based on the Guaranty Clause presents no

justiciable question so has it held, and for the same rea-

sons, that challenges to congressional action on the ground

of inconsistency with the clause present no justiciable

question. . . .

We come, finally, to the ultimate inquiry whether our

precedents as to what constitute a nonjusticiable “political

question” bring the case before us under the umbrella of

that doctrine. A natural beginning is to note whether any

of the common characteristics which we have been able to

identify and label descriptively are present. We find none:

The question here is the consistency of state action with

the Federal Constitution. We have no question decided, or

to be decided, by a political branch of government coequal

with this Court. Nor do we risk embarrassment of our gov-

ernment abroad, or grave disturbance at home if we take

issue with Tennessee as to the constitutionality of her

action here challenged. Nor need the appellants, in order

to succeed in this action, ask the Court to enter upon pol-

icy determinations for which judicially manageable stan-

dards are lacking. Judicial standards under the Equal

Protection Clause are well developed and familiar, and it

has been open to courts since the enactment of the Four-

teenth Amendment to determine, if on the particular facts

they must, that a discrimination reflects no policy, but sim-

ply arbitrary and capricious action.

This case does, in one sense, involve the allocation of

political power within a State, and the appellants might

conceivably have added a claim under the Guaranty

Clause. Of course, as we have seen, any reliance on that

clause would be futile. But because any reliance on the

Guaranty Clause could not have succeeded it does not fol-

low that appellants may not be heard on the equal protec-

tion claim which in fact they tender. True, it must be clear

that the Fourteenth Amendment claim is not so enmeshed

with those political question elements which render Guar-

anty Clause claims nonjusticiable as actually to present a

political question itself. But we have found that not to be

the case here.

In this connection special attention is due Pacific States

Tel. & T. Co. v. Oregon. . . . In that case a corporation tax

statute enacted by the initiative was attacked ostensibly on

three grounds: (1) due process; (2) equal protection; and

(3) the Guaranty Clause. But it was clear that the first two

grounds were invoked solely in aid of the contention that

the tax was invalid by reason of its passage.

* * *

The due process and equal protection claims were held

nonjusticiable in Pacific States . . . because the Court be-

lieved that they were invoked merely in verbal aid of the

resolution of issues which, in its view, entailed political

questions. . . .

We conclude then that the non-justiciability of claims

resting on the Guaranty Clause which arises from their

embodiment of questions that were thought “political,”

can have no bearing upon the justiciability of the equal

protection claim presented in this case. Finally, we empha-

size that it is the involvement in Guaranty Clause claims of

the elements thought to define “political questions,” and

no other feature, which could render them nonjusticiable.

Specifically, we have said that such claims are not held

nonjusticiable because they touch matters of state govern-

mental organization. . . .

* * *

We conclude that the complaint’s allegations of a denial of

equal protection present a justiciable constitutional cause

of action upon which appellants are entitled to a trial and

a decision. The right asserted is within the reach of judicial

protection under the Fourteenth Amendment.

The judgment of the District Court is reversed and

the cause is remanded for further proceedings consistent

with this opinion.

Reversed and remanded.

Source:

Supreme Court Reporter, Vol. 82, pp. 691–720.

Engle v. Vitale, 1962

U.S. Supreme Court decision issued June 25, 1962, declaring

that religious observances in the public schools were uncon-

stitutional. This and other decisions regarding state and reli-

gion were based on the “establishment” clause of the First

Amendment as well as decisions applying the Bill of Rights to

the states.

Previously, the Supreme Court had ruled in

Everson v.

Board of Education of Ewing Township

, (330 U.S. 1), decided

February 10, 1947, that religious institutions could benefit from

government programs that are religiously neutral. A taxpayer

had sued the Board of Education in Ewing, New Jersey, for

using tax money to provide free transportation for all students

1594 ERA 9: Postwar United States

attending parochial as well as public schools. In its 5-4 deci-

sion, the Supreme Court upheld the Board of Education, argu-

ing that the state must be neutral, not adversarial, in its

relations with religious groups. It reaffirmed, however, that the

“wall between church and state . . . must be kept high and

impregnable.” (The phrase “wall of separation” is from com-

mentary on the establishment clause by Thomas Jefferson in a

letter to the Danbury, Connecticut, Baptist Association, Jan-

uary 1, 1802.)

The

Engle

case arose when a group of parents and tax-

payers in North Hempstead, New York, objected to the daily

recitation in the public schools of a nonsectarian prayer writ-

ten by the New York State Board of Regents. Although the

prayer was voluntary, the Supreme Court, in a 6-1 decision,

barred the continuation of the daily recital, declaring that it

violated constitutional prohibitions on the establishment of

religion. The Court stated: “It is no part of the business of gov-

ernment to compose official prayers for any group of Ameri-

can people to recite as a part of a religious program carried on

by government.”

Neither Justice Frankfurter nor White participated in the

decision.

________________________

_______________________

Mr. Justice Black delivered the opinion of the Court.

The respondent Board of Education of Union Free

School District No. 9, New Hyde Park, New York, acting

in its official capacity under state law, directed the School

District’s principal to cause the following prayer to be said

aloud by each class in the presence of a teacher at the

beginning of each school day:

“Almighty God, we acknowledge our dependence

upon Thee, and we beg Thy blessings upon us, our par-

ents, our teachers and our Country.”

This daily procedure was adopted on the recommen-

dation of the State Board of Regents, a governmental

agency created by the State Constitution to which the New

York Legislature has granted broad supervisory, executive,

and legislative powers over the State’s public school sys-

tem. These state officials composed the prayer which they

recommended and published as a part of their “Statement

on Moral and Spiritual Training in the Schools,” saying:

“We believe that this Statement 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.”

Shortly after the practice of reciting the Regent’s

prayer was adopted by the School District, the parents of

ten pupils brought this action in a New York State Court

insisting that use of this official prayer in the public schools

was contrary to the beliefs, religions, or religious practices

of both themselves and their children. Among other

things, these parents challenged the constitutionality of

both the state law authorizing the School District to direct

the use of prayer in public schools and the School District’s

regulation ordering the recitation 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 reli-

gion”—a command which was “made applicable to the

State of New York by the Fourteenth Amendment of the

said Constitution.” The New York Court of Appeals, over

the dissents of Judges Dye and Fuld, sustained an order of

the lower state courts which had upheld the power of New

York to use the Regent’s prayer as a part of the daily pro-

cedures of its public schools so long as the schools did not

compel any pupil to join in the prayer over his or his par-

ents’ objection. We granted certiorari to review this impor-

tant decision involving rights protected by the First and

Fourteenth Amendments.

We think by using its public school system to encour-

age 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. It is a solemn avowal of divine faith and

supplication for the blessings of the Almighty. The nature

of such prayer has always been religious, none of the

respondents has denied this and the trial court expressly so

found:

“The religious nature of prayer was recognized by Jef-

ferson and has been concurred in by theological writers,

the United States Supreme Court and state courts and

administrative officials, including New York’s Commis-

sioner of Education. A committee of the New York Legis-

lature has agreed.

“The Board of Regents as amicus curiae, the respon-

dents and intervenors all concede the religious nature of

prayer, but seek to distinguish this prayer because it is

based on our spiritual heritage. . . . ”

The petitioners contend among other things that the

state laws requiring or permitting use of the Regents’

prayer must be struck down as a violation of the Establish-

ment Clause because that prayer was composed by gov-

ernmental officials as a part of a governmental program to

further religious beliefs. For this reason, petitioners argue,

the State’s use of the Regents’ prayer in its public school

system breaches the constitutional wall of separation

between Church and State. We agree with that contention

since we think that the constitutional prohibition against

laws respecting an establishment of religion must at least

mean that in this country it is no part of the business of

government to compose official prayers for any group of

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1595

the American people to recite as a part of a religious pro-

gram carried on by government.

It is a matter of history that this very practice of estab-

lishing governmentally composed prayers for religious ser-

vices was one of the reasons which caused many of our

early colonists to leave England and seek religious free-

dom in America. The Book of Common Prayer, which was

created under governmental direction and which was

approved by Acts of Parliament in 1548 and 1549, set out

in minute detail the accepted form and content of prayer

and other religious ceremonies to be used in the estab-

lished, tax- supported Church of England. The controver-

sies over the Book and what should be its content

repeatedly threatened to disrupt the peace of that country

as the accepted forms of prayer in the established church

changed with the views of the particular ruler that hap-

pened to be in control at the time. Powerful groups repre-

senting some of the varying religious views of the people

struggled among themselves to impress their particular

views upon the Government and obtain amendments of

the Book more suitable to their respective notions of how

religious services should be conducted in order that the

official religious establishment would advance their partic-

ular religious beliefs. Other groups, lacking the necessary

political power to influence the Government on the mat-

ter, decided to leave England and its established church

and seek freedom in America from England’s governmen-

tally ordained and supported religion.

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 suffi-

ciently 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. Indeed, as late as the time of the Revolutionary

War, there were established churches in at least eight of

the thirteen former colonies and established religions in at

least four of the other five. But the successful Revolution

against English political domination was shortly followed

by intense opposition to the practice of establishing reli-

gion by law. This opposition crystallized rapidly into an

effective political force in Virginia where the minority reli-

gious groups such as Presbyterians, Lutherans, Quakers

and Baptists had gained such strength that the adherents

to the established Episcopal Church were actually a

minority themselves. In 1785-1786, those opposed to the

established Church, led by James Madison and Thomas

Jefferson, who, though themselves not members of any of

these dissenting religious groups, opposed all religious

establishments by law on grounds of principle, obtained

the enactment of the famous “Virginia Bill for Religious

Liberty” by which all religious groups were placed on an

equal footing so far as the State was concerned. Similar

though less far-reaching legislation was being considered

and passed in other States.

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 partic-

ular form of religious services. 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 come to temporary power. The Constitu-

tion 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 safe-

guard was not enough. Our Founders were nor more will-

ing to let the content of their prayers and their privilege of

praying whenever they pleased be influenced by the ballot

box than they were to let these vital matters of personal

conscience depend upon the succession of monarchs. 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, sup-

port 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. Under that

Amendment’s prohibition against governmental establish-

ment of religion, as reinforced by the provisions of the

Fourteenth Amendment, government in this country, be it

state or federal, is without power to prescribe by law any

particular form of prayer which is to be used as an official

prayer in carrying on any program of governmentally spon-

sored religious activity.

There can be no doubt that New York’s state prayer

program officially establishes the religious beliefs embod-

ied in the Regents’ prayer. The respondents’ argument to

the contrary, which is largely based upon the contention

that the Regents’ prayer is “non-denominational” and the

fact that the program, as modified and approved by state

courts, does not require all pupils to recite the prayer but

permits those who wish to do so to remain silent or be

excused from the room, ignores the essential nature of the

program’s constitutional defects. Neither the fact that the

prayer may be denominationally neutral nor the fact that

its observance on the part of the students is voluntary can

serve to free it from the limitations of the Establishment

Clause, as it might from the Free Exercise Clause, of the

First Amendment, both of which are operative against the

States by virtue of the Fourteenth Amendment. Although

1596 ERA 9: Postwar United States

these two clauses may in certain instances overlap, they

forbid two quite different kinds of governmental encroach-

ment upon religious freedom. The Establishment Clause,

unlike the Free Exercise Clause, does not depend upon

any showing of direct governmental compulsion and is vio-

lated by the enactment of laws which establish an official

religion whether those laws operate directly to coerce

nonobserving individuals or not. This is not to say, of

course, that laws officially prescribing a particular form of

religious worship do not involve coercion of such individu-

als. When the power, prestige and financial support of gov-

ernment 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 imme-

diate purpose rested on the belief that a union of govern-

ment and religion tends to destroy government and to

degrade religion. The history of governmentally estab-

lished 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 govern-

ment to spread its faith. The Establishment Clause thus

stands as an expression of principle on the part of the

Founders of our Constitution that religion is too personal,

too sacred, too holy, to permit its “unhallowed perversion”

by a civil magistrate. Another purpose of the Establish-

ment Clause rested upon an awareness of the historical

fact that governmentally established religions and religious

persecutions go hand in hand. The Founders knew that

only a few years after the Book of Common Prayer became

the only accepted form or religious services in the estab-

lished Church of England, an Act of Uniformity was

passed to compel all Englishmen to attend those services

and to make it a criminal offense to conduct or attend reli-

gious gatherings of any other kind—a law which was con-

sistently flouted by dissenting religious groups in England

and which contributed to widespread persecutions of peo-

ple like John Bunyan who persisted in holding “unlawful

[religious’ meetings . . . to the great disturbance and dis-

traction of the good subjects of this kingdom. . . .” And

they knew that similar persecutions had received the sanc-

tion of law in several of the colonies in this country soon

after the establishment of official religions in those

colonies. It was in large part to get completely away from

this sort of systematic religious persecution that the

Founders brought into being our Nation, our Constitution,

and our Bill or Rights with its prohibition against any gov-

ernmental establishment of religion. The New York laws

officially prescribing the Regents’ prayer are inconsistent

both with the purposes of the Establishment Clause and

with the Establishment itself.

It has been argued that to apply the Constitution in

such a way as to prohibit state laws respecting an estab-

lishment of religious services in public schools is to indi-

cate 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

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 reli-

gious 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 the 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 know that the First Amend-

ment, 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 aware-

ness 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 nei-

ther sacrilegious nor antireligious 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.

It is true that New York’s establishment of its Regent’s

prayer as an officially approved religious doctrine of that

State does not amount to a total establishment of one par-

ticular religious sect to the exclusion of all other—that,

indeed, the governmental endorsement of that prayer

seems relatively insignificant when compared to the gov-

ernmental encroachments upon religion which were com-

monplace 200 years ago. To these who may subscribe to

the view that because the Regent’s official prayer is so brief

and general there can be no danger to religious freedom in

its governmental establishment, however, it may be appro-

priate to say in the words of James Madison, the author of

the First Amendment:

“[I]t is proper to take alarm at the first experiment on

our liberties. . . . Who does not see that the same author-

ity which can establish Christianity, in exclusion of all other

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1597

Religions, may establish with the same ease any particular

sect of Christians, in exclusion of all other Sects? That the

same authority which can force a citizen to contribute

three pence only of his property for the support of any one

establishment, may force him to conform to any other

establishment in all cases whatsoever?”

The judgment of the Court of Appeals of New York is

reversed and the cause remanded for further proceedings

not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Douglas, concurring.

It is customary in deciding a constitutional question to

treat it in its narrowest form. Yet at times the setting of the

question gives it a form and content which no abstract

treatment could give. The point for decision is whether the

Government can constitutionally finance a religious exer-

cise. Our system at the federal and state levels is presently

honeycombed with such financing. Nevertheless, I think it

is an unconstitutional undertaking whatever form it takes.

First, a word as to what this case does not involve.

Plainly, our Bill of Rights would not permit a State or

the Federal Government to adopt an official prayer and

penalize anyone who would not utter it. This, however, is

not that case, for there is no element of compulsion or

coercion in New York’s regulation requiring that public

schools be opened each day with the following prayer:

“Almighty God, we acknowledge our dependence

upon Thee, and we beg Thy blessings upon us, our par-

ents, our teachers and our Country.”

The prayer is said upon the commencement of the

school day, immediately following the pledge of allegiance

to the flag. The prayer is said aloud in the presence of a

teacher, who either leads the recitation or selects a student

to do so. No student, however, is compelled to take part.

The respondents have adopted a regulation which pro-

vides that “Neither teachers nor any school authority shall

comment on participation or nonparticipation . . . nor sug-

gest or request that any posture or language be used or

dress be worn or be not used or not worn.” Provision is also

made for excusing children, upon written request of a par-

ent or guardian, from the saying of the prayer or from the

room in which the prayer is said. A letter implementing

and explaining this regulation has been sent to each tax-

payer and parent in the school district. As I read this reg-

ulation, a child is free to stand or not stand, to recite or not

recite, without fear of reprisal or even comment by the

teacher or any other school official.

In short, the only one who need utter the prayer is the

teacher; and no teacher is complaining of it. Students can

stand mute or even leave the classroom, if they desire.

McCollum, etc. v. Board of Education, 333 U.S. 203,

68 S.Ct. 461, 92 L.Ed. 649, does not decide this case. It

involved the use of public school facilities for religious

education of students. Students either had to attend reli-

gious instruction or “go to some other place in the school

building for pursuit of their secular studies. . . . Reports of

their presence or absence were to be made to their secu-

lar teachers.” Id., at 209, 68 S.Ct., at 464. The influence of

the teaching staff was therefore brought to bear on the stu-

dent body, to support the instilling of religious principles.

In the present case, school facilities are used to say the

prayer and the teaching staff is employed to lead the pupils

in it. There is, however, no effort at indoctrination and no

attempt at exposition. Prayers of course may be so long and

of such a character as to amount to an attempt at the reli-

gious instruction that was denied the public schools by the

McCollum case. But New York’s prayer is of a character

that does not involve any element of proselytizing as in the

McCollum case.

The question presented by this case is therefore an

extremely narrow one. It is whether New York oversteps

the bounds when it finances a religious exercise.

What New York does on the opening of its public

schools is what we do when we open court. Our Crier has

from the beginning announced the convening of the Court

and then added “God save the United States and this Hon-

orable Court.” That utterance is a supplication, a prayer in

which we, the judges, are free to join, but which we need

not recite any more than the students need recite the New

York prayer.

What New York does on the opening of its public

schools is what each House of Congress does at the open-

ing of each day’s business. Reverend Frederick B. Harris is

Chaplain of the Senate; Reverend Bernard Braskamp is

Chaplain of the House. Guest chaplains of various denom-

inations also officiate.

In New York the teacher who leads in prayer is on the

public payroll; and the time she takes seems minuscule as

compared with the salaries appropriated by state legisla-

tures and Congress for chaplains to conduct prayers in the

legislative halls. Only a bare fraction of the teacher’s time

is given to reciting this short 22-word prayer, about the

same amount of time that our Crier spends announcing

the opening of our sessions and offering a prayer for this

Court. Yet for me the principle is the same, no matter how

briefly the prayer is said, for in each of the instances given

the person praying is a public official on the public payroll,

performing a religious exercise in a governmental institu-

tion. It is said that the element of coercion is inherent in

the giving of this prayer. If that is true here, it is also true

of the prayer with which this Court is convened, and of

those that open the Congress. Few adults, let alone chil-

dren, would leave our courtroom or the Senate or the

House while those prayers are being given. Every such

audience is in a sense a “captive” audience.

1598 ERA 9: Postwar United States

At the same time I cannot say that to authorize this

prayer is to establish a religion in the strictly historic mean-

ing of those words? A religion is not established in the

usual sense merely be letting those who choose to do so say

the prayer that the public school teacher leads. Yet once

government finances a religious exercise it insert a divisive

influence into our communities. The New York Court said

that the prayer given does not conform to all of the tenets

of the Jewish, Unitarian, and Ethical Culture groups. One

of the petitioners is an agnostic.

“We are a religious people whose institutions presup-

pose a Supreme Being.” . . . Under our Bill of Rights free

play is given for making religion an active force in our lives.

But “if a religious leaven is to be worked into the affairs of

our people, it is to be done by individuals and groups, not

by the Government.” . . . By reason of the First Amend-

ment government is commanded “to have no interest in

theology or ritual”. . . for on those matters “government

must be neutral.” Ibid. The First Amendment leaves the

Government in a position not of hostility to religion but of

neutrality. The philosophy is that the atheist or agnostic—

the non-believer—is entitled to go his own way. The phi-

losophy is that if government interferes in matters

spiritual, it will be a divisive force. The First Amendment

teaches that a government neutral in the field of religion

better serves all religious interests.

My problem today would be uncomplicated but for

Everson v. Board of Education, . . .which allowed taxpay-

ers’ money to be used to pay “the bus fares of parochial

school pupils as a part of a general program under which”

the fares of pupils attending public and other schools were

also paid. The Everson case seems in retrospect to be out

of line with the First Amendment. Its result is appealing,

as it allows aid to be given to needy children. Yet by the

same token, public funds could be used to satisfy other

needs of children in parochial schools—lunches, books,

and tuition being obvious examples. Mr. Justice Rutledge

stated in dissent what I think is durable First Amendment

philosophy:

“The reasons underlying the Amendment’s policy have

not vanished with time or diminished in force. Now as

when it was adopted the price of religious freedom is dou-

ble. It is that the church and religion shall live both within

and upon that freedom. There cannot be freedom of reli-

gion, safeguarded by the state, and intervention by the

church or its agencies in the state’s domain or dependency

on its largesse. Madison’s Remonstrance, Par. 6, 8. The

great condition of religious liberty is that it be maintained

free from sustenance, as also from other interferences, by

the state. For when it comes to rest upon that secular foun-

dation it vanishes with the resting. Id., Par. 7, 8. Public

money devoted to payment of religious costs, educational

or other, brings the quest for more. It brings too the strug-

gle of sect against sect for the larger share or for any. Here

one by numbers alone will benefit most, there another.

That is precisely the history of societies which have had an

established religion and dissident groups. . . . It is the very

thing Jefferson and Madison experienced and sought to

guard against, whether in its blunt or in its more screened

forms. Ibid. The end of such strife cannot be other than to

destroy the cherished liberty. The dominating group will

achieve the dominate benefit; or all will embroil the state

in their dissensions. . . .

What New York does with this prayer is a break with

that tradition. I therefore join the Court in reversing the

judgment below.

Mr. Justice Stewart, dissenting.

A local school board in New York has provided that

those pupils who wish to do so may join in a brief prayer at

the beginning of each school day, acknowledging their

dependence upon God and asking His blessing upon them

and upon their parents, their teachers, and their country.

The Court today decides that in permitting this brief non-

denominational prayer the school board has violated the

Constitutional of the United States. I think this decision is

wrong.

The Court does not hold, nor could it, that New York

has interfered with the free exercise of anybody’s religion.

For the state courts have made clear that those who object

to reciting the prayer must be entirely free of any compul-

sion to do so, including any “embarrassments and pres-

sures.” . . . But the Court says that in permitting school

children to say this simple prayer, the New York authorities

have established “an official religion.”

With all respect, I think the Court has misapplied a

great constitutional principle. I cannot see how an “official

religion” is established by letting those who want to say a

prayer say it. On the contrary, I think that to deny the wish

of these school children to join in reciting this prayer is to

deny them the opportunity of sharing in the spiritual her-

itage of our Nation.

The Court’s historical review of the quarrels over the

Book of Common Prayer in England throws no light for

me on the issue before us in this case. England had then

and has now an established church. Equally unenlighten-

ing, I think, is the history of the early establishment and

later rejection of an official church in our own States. For

we deal here not with the establishment of a state church,

which would, of course, be constitutionally impermissible,

but with whether school children who want to begin their

day by joining in prayer must be prohibited from doing so.

Moreover, I think that the Court’s task, in this as in all areas

of constitutional adjudication, is not responsibly aided by

the uncritical invocation of metaphors like the “wall of sep-

aration,” a phrase nowhere to be found in the Constitution.

What is relevant to the issue here is not the history of an

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1599

established church is sixteenth century England or in eigh-

teenth century America, but the history of the religious

traditions of our people, reflected in countless practices of

the institutions and officials of our government.

At the opening of each day’s Session of this Court we

stand, while one of our officials invokes the protection of

God. Since the days of John Marshall our Crier has said,

“God save the United States and this Honorable Court.”

Both the Senate and the House of Representatives open

their daily Sessions with prayer. Each of our Presidents,

from George Washington to John F. Kennedy, has upon

assuming his Office asked the protection and help of God.

The Court today says that the state and federal gov-

ernments are without constitutional power to prescribe

any particular form of words to be recited by any group of

the American people on any subject touching religion.

One of the stanzas of “The Star-Spangled Banner,” made

our National Anthem by Act of Congress in 1931, contains

these verses:

“Blest with victory and peace, may the heav’n rescued

land

Praise the Pow’r that hath made and preserved us a

nation!

Then conquer we must, when our cause it is just,

And this be our motto ‘In God is our Trust.’”

In 1954 Congress added a phrase to the Pledge of

Allegiance to the Flag so that it now contains the words

“one Nation under God, indivisible, with liberty and jus-

tice for all.” In 1952 Congress enacted legislation calling

upon the President each year to proclaim a National Day

of Prayer. Since 1865 the words “In God we Trust” have

been impressed on our coins.

Countless similar examples could be listed, but there

is no need to belabor the obvious. It was all summed up by

this Court just ten years ago in a single sentence: “We are

a religious people whose institution presuppose a Supreme

Being.” . . .

I do not believe that this Court, or the Congress, or

the President has by the actions and practices I have men-

tioned established an “official religion” in violation of the

Constitution. And I do not believe the State of New York

has done so in this case. What each has done has been to

recognize and to follow the deeply entrenched and highly

cherished spiritual traditions of our Nation—traditions

which come down to us from those who almost two hun-

dred years ago avowed their “firm Reliance on the Protec-

tion of divine Providence” when they proclaimed the

freedom and independence of this brave new world.

I dissent.

Source:

Court Reporter, Vol. 82, pp. 1,261–1,277.

Martin Luther King, Jr.,

“I Have a Dream Speech,” 1963

Address delivered by the Reverend Dr. Martin Luther King, Jr.,

August 28, 1963, at the Lincoln Memorial in ceremonies con-

nected with the March on Washington for Jobs and Freedom,

which attracted some 250,000 demonstrators. In this eloquent,

emotionally charged speech, the black civil rights leader

described his vision of freedom and equality for all Americans.

“It is a dream deeply rooted in the American dream.” It was a

dream that the descendants of slaves and slave owners would

live in brotherhood, that freedom and justice would replace

oppression and injustice, that people would be judged on the

basis of character not skin color. King looked forward to the

day when all Americans could join in the spiritual refrain:

“Free at last. Free at last; thank God Almighty, we are free at

last.” Excerpts from this speech, have been quoted by both

proponents of affirmative action for blacks and opponents

(especially “the content of their character,” phrase).

After the march ended, President John F. Kennedy met

with 10 of the civil rights leaders. He then issued a statement

hailing the demonstration as an advance in the cause of civil

rights and said he had been impressed by the “deep fervor and

the quiet dignity” that the marchers had displayed. He did not,

however, sufficiently promote the civil rights act then in

Congress to achieve its passage before his assassination

November 22, 1963.

________________________

_______________________

I am happy to join with you today in what will go down in

history as the greatest demonstration for freedom in the

history of our nation.

Five score years ago, a great American, in whose sym-

bolic shadow we stand today, signed the Emancipation

Proclamation. This momentous decree came as a great

beacon light of hope to millions of Negro slaves who had

been seared in the flames of withering injustice. It came as

a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free;

one hundred years later, the life of the Negro is still sadly

crippled by the manacles of segregation and the chains of

discrimination; one hundred years later, the Negro lives on

a lonely island of poverty in the midst of a vast ocean of

material prosperity; one hundred years later, the Negro is

still languished in the corners of American society and

finds himself in exile in his own land.

So we’ve come here today to dramatize a shameful

condition. In a sense we’ve come to our nation’s capital to

cash a check. When the architects of our republic wrote

the magnificent words of the Constitution and the Decla-

ration of Independence, they were signing a promissory

note to which every American was to fall heir. This note

1600 ERA 9: Postwar United States

was the promise that all men, yes, black men as well as

white men, would be guaranteed the unalienable rights of

life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this

promissory note in so far as her citizens of color are con-

cerned. Instead of honoring this sacred obligation, Amer-

ica has given the Negro people a bad check; a check which

has come back marked “insufficient funds.” But we refuse

to believe that the bank of justice is bankrupt. We refuse

to believe that there are insufficient funds in the great

vaults of opportunity of this nation. And so we’ve come to

cash this check, a check that will give us upon demand the

riches of freedom and the security of justice.”

We have also come to this hallowed spot to remind

America of the fierce urgency of now. This is no time to

engage in the luxury of cooling off or to take the tranquil-

izing drug of gradualism. Now is the time to make real the

promises of democracy; now is the time to rise from the

dark and desolate valley of segregation to the sunlit path of

racial justice; now is the time to lift our nation from the

quicksands of racial injustice to the solid rock of brother-

hood; now is the time to make justice a reality for all God’s

children. It would be fatal for the nation to overlook the

urgency of the moment. This sweltering summer of the

Negro’s legitimate discontent will not pass until there is an

invigorating autumn of freedom and equality.

Nineteen sixty-three is not an end, but a beginning.

And those who hope that the Negro needed to blow off

steam and will now be content, will have a rude awakening

if the nation returns to business as usual. There will be nei-

ther rest nor tranquillity in America until the Negro is

granted his citizenship rights. The whirlwinds of revolt will

continue to shake the foundations of our nation until the

bright day of justice emerges.

But there is something that I must say to my people,

who stand on the worn threshold which leads into the palace

of justice. In the process of gaining our rightful place, we

must not be guilty of wrongful deeds. Let us not seek to sat-

isfy our thirst for freedom by drinking from the cup of bit-

terness and hatred. We must forever conduct our struggle

on the high plain of dignity and discipline. We must not

allow our creative protests to degenerate into physical vio-

lence. Again and again we must rise to the majestic heights

of meeting physical force with soul force. The marvelous

new militancy, which has engulfed the Negro community,

must not lead us to a distrust of all white people. For many

of our white brothers, as evidenced by their presence here

today, have come to realize that their destiny is tied up with

out destiny. And they have come to realize that their free-

dom is inextricably bound to our freedom. We cannot walk

alone. And as we walk, we must make the pledge that we

shall always march ahead. We cannot turn back.

There are those who are asking the devotees of Civil

Rights: “When will you be satisfied?” We can never be sat-

isfied as long as the Negro is the victim of the unspeakable

horrors of police brutality; we can never be satisfied as

long as our bodies, heavy with the fatigue of travel cannot

gain lodging in the motels of the highways and the hotels

of the cities; we cannot be satisfied as long as the Negro’s

basic mobility is from a smaller ghetto to a larger one; we

can never be satisfied as long as our children are stripped

of their selfhood and robbed of their dignity by signs stat-

ing. “For White Only;” we cannot be satisfied as long as the

Negro in Mississippi cannot vote and a Negro in New York

believes he has nothing for which to vote. No! No, we are

not satisfied, and we will not be satisfied until “justice rolls

down like waters and righteousness like a mighty stream.”

I am not unmindful that some of you have come here

out of great trials and tribulations. Some of you have come

fresh from narrow jail cells. Some of you have come from

areas where your quest for freedom left you battered by

the storms of persecution and staggered by the winds of

police brutality. You have been the veterans of creative suf-

fering. Continue to work with the faith that unearned suf-

fering is redemptive. Go back to Mississippi: Go back to

Alabama: Go back to South Carolina: Go back to Georgia:

Go back to Louisiana: Go back to the slums and ghettos of

our Northern cities, knowing that somehow this situation

can and will be changed. Let us not wallow in the valley of

despair.

So I say to you, my friends, that even though we face

the difficulties of today and tomorrow, I still have a

dream. It is a dream deeply rooted in the American

dream, that one day this nation will rise up and live out

the true meaning of its creed, “we hold these truths to be

self-evident, that all men are created equal.” I have a

dream that one day on the red hills of Georgia, sons of for-

mer slaves and the sons of former slave owners will be

able to sit down together at the table of brotherhood. I

have a dream that one day even the state of Mississippi, a

state sweltering with the heat of injustice, sweltering with

the heat of oppression, will be transformed into an oasis of

freedom and justice. I have a dream my four little chil-

dren will one day live in a nation where they will not be

judged by the color of their skin, but by the content of

their character.

I Have a Dream Today!

I have a dream that one day in Alabama—with its

vicious racists, with its Governor having his lips dripping

with the words of interposition and nullification—one day

right there in Alabama, little black boys and black girls will

be able to join hands with little white boys and white girls

as sisters and brothers.

I Have a Dream Today!

Struggle for Racial and Gender Equality and for the Extension of Civil Liberties 1601