by David New
via Sentry Magazine, Vol. 20 No. 4, December 1994

[David is a member of the Annandale church of Christ and, as a lawyer, represents clients who are trying to restore prayer to the public schools.]

On June 25, 1962, Justice Hugo Black, writing for the Supreme Court in the landmark Engel v. Vitale, 370 U.S. 421 (1962), declared that the prayer known as the Regents’ prayer violated the First Amendment to the Constitution of the United States respecting an establishment of religion. The short twenty-two-word prayer, which was said voluntarily by any student who chose to participate, was as follows:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country."

In my opinion, after June 25, 1962, millions of young Americans lost their religious liberty and freedom of speech in the public schools, American education changed for the worse, and in the opinion of many people, American youth steadily lost respect for themselves, their parents, their teachers, and their country. The Supreme Court justified its position of removing voluntary prayer from the public schools by referring to the "wall of separation between Church and State." The phrase "separation of church and state," or its equivalent, is said so often that most Americans actually believe that it is part of the Constitution. Nothing like it appears anywhere in the Constitution. Only in the former Soviet Constitution of 1977 does the phrase come close to being used in such a document. Article 52 says, "In the U.S.S.R., the church is separated from the state, and the school from the church."

(A common mistake is to credit Madalyn Murray O’Hair with the removal of prayer from the public schools; in fact, her case came a year later, which involved readings from the Bible without comment and/or the use of the Lord’s prayer. See School District of Abington Township y. Schempp, 374 U.S. 203 (1963). In Abington, as in the Engel case, the doctrine of the separation of church and state was used to justify the termination of the practice. The Supreme Court also relied on "expert testimony" in the record by Dr. Solomon Grayzel, who stated that reading portions of the New Testament could be "psychologically harmful" to children unless explained.)

The origin of the doctrine of the separation of church and state cannot be found in the debates by the first Congress in 1789, which passed the First Amendment, or from a commentary written by a legal scholar, but from a half-page personal letter written by Thomas Jefferson dated January 1, 1802, to the Danbury Baptist Association in Danbury, Connecticut. The Danbury Baptist Association requested that President Jefferson declare a national day of prayer and fasting in light of the nation’s past ordeals. Mr. Jefferson denied the request and responded in part as follows:

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ’make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State." (Norman Cousins, "In God We Trust," New York: Harper and Brothers Publishers, 1958, p. 135.)

Unfortunately, the Supreme Court and other advocates of the separation of church and state quote Jefferson's words out of context and totally distort his meaning to justify an abuse of governmental power that he would never support. In a letter to Samuel Miller dated January 23, 1808, Jefferson again responded to a similar request for a day of prayer and fasting, but this time he explained his reasons more clearly:

"I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provisions that no law shall be made respecting the establishment of the free exercise of religion, but from that also to the United States. Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government. It must rest with the States, as far as it can be in any human authority." (emphasis mine, dn). Id p. 136.

Mr. Jefferson believed that the federal government did not have the authority to declare days of prayer or fasting, but that the states could. As a member of the Virginia legislature, Jefferson did support state-sponsored days of prayer. Jefferson recognized in his letter to Samuel Miller that President Washington and Adams had declared national days of prayer, but that he believed that his authority rested solely with the states (Jefferson’s successor, President Madison, known as the "Father of the Constitution," continued the practice of Washington and Adams and declared a national day of prayer). To the Supreme Court, the term "separation of church and state" means that the Federal government has the power to silence an American child from saying a prayer to God or to control the actions of state government. To Thomas Jefferson, the term meant that all restraint was on the federal government, not on the states, much less on an individual American citizen. The members of the Supreme Court know that they are using Jefferson’s words out of context.

Justice Black argued that voluntary prayer in the public schools violated the First Amendment to the U.S. Constitution. The First Amendment reads as follows:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The most important word in the First Amendment is the word "Congress." The word "Congress" identifies who the restraint is on. The word "Congress" means that the federal government cannot establish any religion or prohibit the free exercise of religion. On December 15, 1791, when the First Amendment was ratified, several states had established churches or state religions, and the purpose of the First Amendment was to protect their existence from a federal or national church. Historians differ on the exact number of states with state churches or religions; however, I believe at least six states had them when the First Amendment was ratified.

Three recognized the Congregationalist Church (Massachusetts, New Hampshire, and Connecticut) while three others declared for Protestant (Maryland, South Carolina, and Georgia). Generally, the movement for the disestablishment of state churches developed first in the Mid-Atlantic states, and then it proceeded in the South, where the Anglican church dominated all the Southern states, but was weak (for example, North Carolina disestablished the Anglican church in 1776, Georgia acted in 1777, South Carolina in 1778). This movement finally came to the New England states, where the Congregational church was very strong. Massachusetts was the last state to hold out for an official state church in the United States. On November 11, 1833, Article XI replaced Article III in the state constitution, ending over 200 years of Puritanism in America.

It is important to understand the constitutional status of the various state churches in the United States during the 18th and 19th centuries. They were all constitutional. The state church in Massachusetts was constitutional because the restrictions of the First Amendment (including the first eight amendments in the Bill of Rights) originally applied only to the federal government and not to the states. The first time any part of the Bill of Rights was held by the Supreme Court to apply to the states was in 1925. Today, the Supreme Court would declare any law unconstitutional that tried to establish a state church or religion because of the 14th Amendment, which was ratified on July 9, 1868, and only because of the Court’s judicial interpretations of that amendment in the last 50 to 60 years. (The original Bill of Rights sent to the states had twelve amendments. The first two, which dealt with apportionment and congressional pay, did not pass.)

James Madison, as a member of the first Congress, in the debates over the Bill of Rights, made the definitive comment on the original intent of the First Amendment when he said the following:

"Mr. Madison thought, if the word ’national’ was inserted before religion, it would satisfy the minds of the honorable gentlemen. He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word ’national’ was introduced, it would point the amendment directly to the object it was intended to prevent." (Annals of Congress 731, Aug. 15, 1789.)

The word "national" was not used in the First Amendment because of opposition from Representative Gerry, who expressed the anti-federalists' fear that the federal government was not intended to be a national government.

The Northwest Ordinance of 1787 is perhaps the best evidence that there is no conflict between the First Amendment and voluntary prayer in public schools. The Northwest Ordinance, which was re-enacted by the first Congress in 1789 after the federal government came into existence, established the rules by which future states in the Northwest Territory could be admitted to the Union. (The first Congress also passed the Bill of Rights.) Article 3 says the following:

"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." [Henry Steele Commager, Editor, Documents of American History (New York: F.S. Crofts and Co., 1947, p. 131)].

I do not believe that any state or the federal government should establish a church or religion. Nor do I believe that there is anything constitutionally inconsistent with voluntary prayer in the public schools and the First or Fourteenth Amendments. Before the Engel case went to the Supreme Court, it was heard by three state courts (a trial-level court, an appeals court, and the highest court in the state of New York, the Court of Appeals), where the side in favor of voluntary prayer won in all three courts. America is paying a very high price for abandoning the spiritual and moral roots upon which American Liberty and freedom are based: the Holy Bible and the U.S. Constitution. If I could be allowed to speculate, I think the first Chief Justice of the Supreme Court, John Jay, who was one of the early presidents of the American Bible Society, would remind this Court, if he were alive today, that "Righteousness exalteth a nation: but sin is a reproach to any people" (Proverbs 14:34).