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Vail Valley Voices: High Court weighs in on church-state

Henry Bornstein
Vail, CO, Colorado

Editor’s note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, replies in several parts to a recent Valley Voices column by Dick Gustafson addressing the separation of church and state. This is the fifth part.

Dick Gustafson makes more claims that are also factually and legally incorrect:

n “The courts have drifted far from Jefferson’s and others’ original intent, actually reversing the intention of the Constitution and the 1st Amendment.”



n “The court has gone so far as to declare ‘atheism’ a religion, and has taken that ‘religion’s’ position over the freedom of Christian religious expression.”

A brief bit of court history: Marbury v. Madison 5 US (1 Cranch) 137 (1803): This was the first time the Supreme Court declared a statute “unconstitutional” and established the concept of judicial review in the U.S. The idea that courts may oversee and nullify the actions of another branch of government had never been addressed. This principle has never been challenged since.



The 1st Amendment, ratified in 1791, by its terms only applied to the federal government, not to any state. In the 1920s the Supreme Court started to apply certain portions of the Bill of Rights to the states via the 14th Amendment “due process” clause. Prior to 1940, there were some cases that weakly implied that the 14th Amendment “due process” clause applied to the “free exercise” portion of the 1st Amendment with respect to the states. Cantwell v. Connecticut, 310 US 296 (1940), made it official. Everson v. Board of Education, 330 US 1. (1947) declared that the “establishment” portion of the 1st Amendment applied to the states via the 14th Amendment “due process” clause.

Despite the weakening the clear meaning of the 1st Amendment by the conservative members of the current Supreme Court by permitting the intrusion of religion into civil government, these principles of law have so far still held up.

In light of Mr. Gustafson’s claims, I will start with the one case that he expressly cites [Engel vs. Vitale 370 US 421 (1962)]. The facts: The board of the Union Free School District No. 9, New Hyde Park, New York, directed the school district’s principal to cause this 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 parents, our teachers and our country.”



“The parents of 10 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. These parents challenged the constitutionality of the state law and the school district’s regulation ordering the recitation of this particular prayer on the ground that these actions the 1st Amendment of the U.S. Constitution which commands that ‘Congress shall make no law respecting an establishment of religion.’

“We (The U..S Supreme Court) granted certiorari to review this important decision involving rights protected by the 1st and 14th amendments. We think that by using its public school system to encourage recitation of the Regents’ prayer, the state of New York has adopted a practice wholly inconsistent with the establishment clause. …

“The nature of such a prayer has always been religious, none of the respondents has denied this and the trial court expressly so found: The Board of Regents as amicus curiae, the respondents and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. …”

That’s the majority opinion given by J. Black.

I have quoted what I believe to be the substantive portions of the opinion. I suggest that one should read the entire case, hopefully with an open mind:

“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 particular form of religious services.

“The 1st 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, support 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 establishment of religion, as reinforced by the provisions of the 14th 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 sponsored religious activity.

“There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the regents’ prayer. 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 1st Amendment, both of which are operative against the states by virtue of the 14th Amendment.

“Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom.

“The establishment clause, unlike the free exercise clause, does not depend upon any showing of direct governmental compulsion and is violated 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 individuals. When the power, prestige and financial support of government 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 immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.”

This case officially removed a government-sponsored religious act (prayer) from public schools and again confirms the legal validity of the separation of church and state.

I ask Mr. Gustafson, if he would have not voiced any objection if the regent’s prayer would have been a prayer from the Koran?

Henry Bornstein is a retired attorney who lives in Edwards.


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