One Nation Under God: How Corporate America Invented Christian America (30 page)

Some of the plaintiffs and their supporters worried the lawsuit would prompt an anti-Semitic backlash. “There were some who thought we shouldn't do it,” Roth remembered. A rabbi from a nearby town cautioned Lichtenstein against taking part, but Lichtenstein dismissed his warning with an old joke. (Two Jews were brought before a Nazi firing squad. As the soldiers took aim, one started screaming, “Down with Hitler!” The other turned and whispered: “Morris, listen. Why make trouble?”) But when the parents sought legal counsel from the ACLU, they discovered the lawyers were equally concerned about appearances. “I was a board member of the NYCLU,” attorney William Butler remembered. “When the case came up, they decided that the lawyer could not be a Jew. He must be Catholic, that is, someone taking the attitude that he is
defending
prayer and religious freedom, not attacking it. And they looked down at the end of the table and saw a nice Irish-Catholic boy—William Butler.” Though he was a self-described “conservative corporate lawyer” who had little experience with civil liberties cases, Butler felt compelled to take the case. “I knew,” he later recalled, “that this was the first time in the history
of the United States that a state had actually composed a prayer and then inserted this prayer into one of its compulsory institutions.”
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As
Engel v. Vitale
made its way through the state courts, the parents' complaints were repeatedly brushed aside. In August 1959, Judge Bernard Meyer at the Nassau County Courthouse sided with the school board. He held that the Regents' Prayer did not violate the First Amendment's establishment clause and, at the same time, was protected by its free-exercise clause. Public prayer, Meyer asserted, was “an integral part of our national heritage.” (Evidence of that alleged heritage was found on the wall of his own courtroom, which was adorned with a plaque inscribed “In God We Trust.” Only months earlier, the legislative body that oversaw New York's state judicial system had urged the display of the new national motto in all its courts.) Still, the judge ruled that the board had to honor the requests of all students who asked to be excused during the prayer. Though it was hailed as a “compromise decision” by the ACLU, the parents behind the suit were not content. “It seemed strange to me,” Larry Roth recalled, “that a judge would render a decision saying ‘this prayer is legal, but if you do so and so it's going to be even
more
legal.'” The plaintiffs pressed on to the appellate court in Brooklyn, where they found the phrase “In God We Trust” recently inscribed over the doors. They were rebuffed there as well. Four of the five justices considered the lower court's ruling so obvious that they affirmed it without a word of explanation in October 1960. The fifth justice offered a concurring opinion that deemed the Regents' Prayer a harmless practice within the bounds of the “universally accepted tradition that ours is a nation founded and nurtured by belief in God.”
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The plaintiffs fared no better before the Court of Appeals, the highest in the state. In 1961, the court affirmed the lower courts' rulings in a 5–2 decision. As before, the majority seemed incredulous at the plaintiffs' claims. “Not only is this prayer not a violation of the First Amendment,” insisted Chief Judge Charles S. Desmond, “but holding that it is such a violation would be in defiance of all of American history.” Like their colleagues on lower courts, the majority justified its decision by pointing to the many religious references in national politics. There were “literally countless illustrations” that proved “belief and trust in a Supreme Being was from the beginning and has been continuously part of the very essence of the American plan of government and society.” Specifically, they pointed to

the references to the Deity in the Declaration of Independence; the words of our National Anthem: “In God is our trust”; the motto on our coins; the daily prayers in Congress; the universal practice in official oaths of calling upon God to witness the truth; the official thanksgiving proclamations beginning with those of the Continental Congress and the First Congress of the United States and continuing till the present; the provisions for chaplaincies in the armed forces; the directions by Congress in modern times for a National Day of Prayer and for the insertion of the words “under God” in the Pledge of Allegiance to the Flag; [and] innumerable utterances by our presidents and other leaders.

Most of these were recent innovations not yet reviewed by the courts, but no matter. In a sign of how swiftly and thoroughly the religious revival of the 1950s had taken root, these judges cited changes that had occurred in their own recent memory as proof that the country's religious roots stretched back to time immemorial.
¹⁹

From there, the case moved quickly to the United States Supreme Court, where the constitutionality of what Eugene Rostow would soon classify as “ceremonial deism” became the central issue.
²⁰
When oral arguments began on April 3, 1962, the call to order reminded both sides of the pervasive presence of religion in the everyday workings of government: “Oyez! Oyez! Oyez! God save the United States and this honorable Court!” Ten years earlier, Justice William O. Douglas had cited such traditions in concluding that “we are a religious people whose institutions presuppose a Supreme Being.” This judgment had come naturally to Douglas. The son of a Presbyterian minister, he had attended religious services three times a week in his younger days. As he grew older, however, he began to have doubts about the role of organized religion in America, doubts that colored his questioning in
Engel v. Vitale.
“This courtroom, where we have an announcement every time we come—‘God save the United States and this honorable Court,' we haven't decided whether that's constitutional or not, have we?” he asked William Butler. “We have not decided whether compulsory prayer in the halls of Congress is constitutional. Is that case on its way here?” As nervous laughter filled the
chamber, the attorney could only joke back, “If it is, Your Honor, I'm glad I'm not bringing it.”
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But the rest of the oral arguments showed that the case Butler brought that day did, in fact, involve the constitutionality of religious expressions in public life. In his questions, Justice Potter Stewart pressed the plaintiffs' attorney about the newly amended Pledge of Allegiance. “It now includes in its language the expression ‘one nation under God,'” he pointed out. “Now, what's the difference between that and this affirmation of a belief in God?” Butler dodged the issue by noting that the flag salute led children to swear loyalty to their country, not a deity. “Under God,” Stewart interrupted. “Under God, yes,” Butler replied, “but it's a political—” The justice broke in again:
“Under
God.
Under
God.” “It is a political affirmation,” the lawyer insisted. “The whole tenor of the utterance is not religious, whereas the utterance in this case is solely religious.” Stewart disagreed: “The preposition ‘under' presupposes and implies a dependence on a Supreme Being by this entire nation, does it not?” The otherwise composed Butler stumbled until another justice intervened, asking directly if his clients were challenging the constitutionality of the flag salute. Assured that they were not, the Court moved on.
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Public religious expressions likewise emerged as a central theme in arguments from the defense. Bertram Daiker, counsel for the school board, began by asserting that the Regents' Prayer was constitutional because of America's religious tradition. “Since the earliest days of this country, going back to the Mayflower Compact,” he said, “the men who put the country together have publicly and repeatedly recognized the existence of a Supreme Being, a God.” Pointing specifically to the references to a Creator in both the Declaration of Independence and forty-nine of the fifty states' constitutions, he claimed the prayer was “fully in accord with the tradition and heritage that has been handed down to us.” When Chief Justice Warren inquired if the prayer was a religious practice, Daiker insisted it was nothing of the kind. “Whenever people gather together in a group and utter a prayer, a recognition of the Almighty, as has been consistently done since the founding of the country hundreds of years ago, we don't find constitutional objections,” he said. “How, then, can we say that prayer is all right on any public occasion in a state-paid-for building,
with state employees, except for the schools?” If the Regents' Prayer were unconstitutional, in other words, all the rest had to be as well.
²³

Appearing as an “intervenor” on behalf of district parents who supported the Regents' Prayer, Porter Chandler made a similar appeal about the prevalence and power of religious references in public life. He argued that banning the prayer would deprive their children of the right to take part in the nation's religious heritage. While the plaintiffs portrayed the regents' action as a dangerous new development, he asserted that it was the plaintiffs who wanted to break with tradition. Prayer had long been part of public schools, Chandler maintained, and state officials had merely built upon a century of past practice. Moreover, the Regents' Prayer was simply one of many recent manifestations of that long-standing religious tradition, such as the adding of “under God” to the flag salute. “The question was asked whether that had a religious connotation or was a religious exercise,” he said. “And I say unequivocally,
yes
.” Reading into the record the House of Representatives report for the pledge proposal, the lawyer left no doubt that the change had been made with religious motives in mind. In closing, Chandler sarcastically invited the opposing counsel to familiarize himself with the religious traditions of the nation. “I would ask Mr. Butler,” he said, “to recite the words of the Declaration of Independence, or to say that all men are created equal and that they're endowed by their Creator with inalienable rights.”
²⁴

That afternoon, the justices assembled in their conference room to determine their vote in
Engel v. Vitale.
Only eight justices were present, not the usual nine. Justice Charles Evans Whittaker, an Eisenhower appointee who had been overwhelmed by the rigors of the job, had suffered a nervous breakdown earlier in the spring. After spending most of March 1962 in recovery at Walter Reed Hospital, Whittaker abruptly announced his retirement, effective immediately, at the end of the month. (None of the justices knew it at the time, but their ranks would soon be thinned again. Justice Felix Frankfurter—whose constant badgering was cited by Whittaker's son as a “major factor” in his father's collapse—would suffer a debilitating stroke only two days after their discussion of
Engel.)
In keeping with tradition, no witnesses were allowed to join the judges in the conference room, but Douglas's handwritten notes offer rare insight into their discussion. As always, the chief justice spoke first, then the rest in
order of seniority. Setting the tone, Warren announced he would vote to reverse the lower courts' rulings and side with the plaintiffs. The Regents' Prayer was clearly “religious instruction” that violated the First Amendment. He sidestepped the larger issue of religion in political life, noting that “the fact that we speak of God with reverence does not mean we can take the prayer into the school,” where it would be “difficult” for children who objected to be excused. Hugo Black, a self-described “absolutist” on First Amendment issues, wholeheartedly agreed and voted to reverse. Frankfurter, in the final deliberation of his twenty-three years of service, did likewise. So did Douglas. Tom Clark, whose appointment had been “sacralized” by Abraham Vereide, also favored reversal because there had been clear “compulsion” by the state. Although more conservative than his colleagues, the Eisenhower appointee John Marshall Harlan II noted he too would “reluctantly” vote to reverse the earlier rulings. “This is a prayer,” he said flatly, “not a celebration of a patriotic ritual.” As the others agreed to reverse, Stewart remained alone on the fence. (“Not at rest,” Douglas observed in clipped notes; “still in doubt.”) But with seven votes for the plaintiffs, the outcome was not in doubt. After their colleagues filed out, Black asked the chief if he could have the honor of writing the opinion. Warren gladly obliged.
²⁵

For Black, the
Engel
case was the culmination of a complicated lifelong relationship with religion. A native of rural Alabama, he had grown up deep within the Baptist tradition. In 1907, after arriving in Birmingham to practice law, Black became an active member of its First Baptist Church. His pastor Alfred Dickinson, who had trained at Harvard and the University of Chicago, two bastions of modernist religious thought, was notoriously liberal in his theology. He stood for separation of church and state, welcomed evolutionary biology and textual criticism of the Bible, and contemptuously dismissed “noisy conversions and ecclesiastical whoopee.” Black, who served as a deacon at First Baptist and taught its adult Sunday school for nearly a quarter century, came to share his pastor's perspective. “For Black,” the historian Wayne Flynt wrote, “the ethics of Jesus—treating all people fairly, promoting social justice, defending the vulnerable and the powerless—were more important than personal divinity.” For much of his life, Black professed to be an agnostic. “Understand,” he once told his son, “I cannot believe. But I can't
not
believe either.”
²⁶

Though he harbored doubts about standard Baptist theology, Black adhered to its political traditions, especially its centuries-old call for complete separation of church and state. Indeed, he did much to cement that doctrine in American law. In his landmark opinion in
Everson v. Board of Education,
a 1947 case involving a New Jersey statute requiring school boards to reimburse transportation costs for parents of parochial schoolchildren, Black argued that neither the states nor the federal government could “enact laws aiding one religion over another, force or influence a person toward or away from a church, belief, or disbelief, punish a person for profession or nonprofession, levy a tax to support religious activities or institutions, or participate in the affairs of any religious organization.” The justice reached back to borrow a metaphor coined in a letter to his fellow Baptists in Danbury, Connecticut, two and a half centuries before. “In the words of Jefferson,” Black wrote, “the clause against establishment of religion by laws was intended to erect ‘a wall of separation between church and state.'”
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