Engel v. Vitale – Oral Argument – April 03, 1962 (Part 1)

Media for Engel v. Vitale

Audio Transcription for Oral Argument – April 03, 1962 (Part 2) in Engel v. Vitale

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Earl Warren:

Number 468, Steven I. Engel, et al., Petitioners, versus William J. Vitale, Jr., et al.

Mr. Butler.

William J. Butler:

Mr. Chief Justice, members of the Court.

If the Court pleases, this case comes to this Court on a writ of certiorari to the Court of Appeals of the State of New York which affirmed an order dismissing a petition of the lower courts which alleged in effect the unconstitutionality of the saying of a religious prayer at the opening of the school day in the public schools of Long Island.

Before I get into the facts of the case which raise in our opinion grave constitutional problems, I’d like to state to the Court that it’s our fundamental and basic thesis that this is one of those cases which involves an attempt by the State to introduce religious education and observances into the public school system of our nation.

John M. Harlan II:

(Inaudible)

William J. Butler:

This —

John M. Harlan II:

— very distinct (Inaudible)

William J. Butler:

Mr. Justice Harlan, this is a recommendation by the Board of Regents of the State of New York to all school districts and it has been adopted by many of the school districts throughout the State of New York.

The exact number of school districts that have adopted the saying of this prayer, it is unknown from the record except that it is in a substantial amount of school districts within the State.

Before continuing and getting into the specific facts of the argument, we think it issue here fundamentally is the Government’s role in the religious education of our youth through the public school system of our nation.

To what extent the question will be raised?

Can a state participate in the religious training of our youth?

To what extent can it insert in its compulsory institutions, prayers or religious observances?

The instant prayer or the instant religious activity or exercise arose from a meeting of the Board of Regents of the State of New York on November 30th, 1951.

At that time, the Board of Regents which in effect is the highest educational authority in the State of New York, issued a statement entitled, “The Regent Statement on Moral and Spiritual Training in Schools”.

This authority, which sets the educational standards of all of the public schools of New York State, in a statement I issued on that day, and I’d like to quote from it since it is very brief, stated simply as follows.

Hugo L. Black:

Where is it?

William J. Butler:

At page 28 of the record.

If the Court so pleases, Mr. Chief Justice.

Earl Warren:

(Inaudible)

William J. Butler:

At folio 84, said, the unanimous decision of the Board of Regents.

In our opinion, the securing of the peace and safety of our country and our state against such dangers points to the essentiality of teaching our children as set forth in the Declaration of Independence that Almighty God is their Creator and that by Him, they have been endowed with their any legible rights of life, liberty and the pursuit of happiness.

We believe that at the commencement of each school day, the Act of Allegiance to the Flag might well be joined with this act of reverence to God “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”

Further at page 29, folio 87, the Regents concluded by saying, “We believe that thus the school will fulfill its high function of supplementing the training of the home, ever intensifying in the child that love for God, for parents, and for home which is the mark of true character, training, and a sure guarantee of a country’s welfare.”

Felix Frankfurter:

Mr. Butler.

William J. Butler:

Yes, Mr. Justice Frankfurter.

Felix Frankfurter:

I would like to know exactly what order of the Court of Appeals or what decision it is against which you’re seeking review — from which you’re seeking review here and not all the record, the Board of Regents never disseminated in issuing something.

We’re not here reviewing what the Board of Regents desired with, you’re reviewing some specific act by some specific Board of Education, now what is that?

William J. Butler:

Now, the spe — the specific act, Your Honor, is the local board’s issuance of a resolution and an order to the local school principal of the school located within the Board’s district instructing that the opening — the opening of the school day after the salute to the flag that this prayer recommended by the Board of Regents and for the reasons recommended by the Board of Regents be said daily, led by a teacher in unison with all other members of the class.

Felix Frankfurter:

You mean reading the prayer which specifically required to be read?

William J. Butler:

Yes, Your Honor.

Exactly.

This is —

Felix Frankfurter:

I thought you also read the reasons for it?

William J. Butler:

Well, this is the specific prayer that is required to be read that I’ve just read to you, Your Honor, that’s why I thought the Court will be interested in hearing this prayer itself.

Felix Frankfurter:

I’m not only interested but if that’s the vital issue in this case whether this prayer maybe ordered to be read, isn’t that the real issue?

William J. Butler:

Yes, Your Honor.

In the manner in which it’s read and the facts surrounding the reading of the prayer — by participation in the prayer by the teachers or the state officials which I also think is an important fact in view of Your Honor’s caveat in — in several other cases.

Felix Frankfurter:

But the reasons, a prayer may — an order of the Board of Education maybe constitutionally required by the State of New York although reasons given for it may not commend themselves to it.

William J. Butler:

Yes, I think — I think so, Your Honor.

I think that’s a correct statement of the legal principles involved.

But I thought the Court (Voice Overlap) might like to be informed of the surrounding circumstances which are alleged in our petition.

Felix Frankfurter:

I suggest that it will be more strict to the legal principle in this case because that’s our business, the better for everybody.

Hugo L. Black:

I presume you think that — that would throw light on the meaning of the prayer?

William J. Butler:

Yes, Your Honor.

It was my sole purpose in — in reading these two paragraphs to show the Court the motive behind the saying of the prayer why it was introduced in the school system and exactly what they — what the state authority recommended that was adopted by the local school board.

Earl Warren:

And did I understand you to say that the school board said that it adopted the prayer for the reasons that the Board of Regents had — had sent out.

William J. Butler:

Yes, it adopted the state — this statement that I have just read of the Board of Regents and directed that the prayer recommended in the statement —

Earl Warren:

Yes.

William J. Butler:

— he said daily in the public schools of their district.

Earl Warren:

Yes, for the reason stated by the Board of —

William J. Butler:

Yes, it adopted —

Earl Warren:

Yes.

William J. Butler:

— the statement of the Board of Regents.

Earl Warren:

Yes, yes, I see.

John M. Harlan II:

Where is that action taken from, page 40?

It was the resolution adopted before.

William J. Butler:

Yes, yes, I think it is Your Honor.

What does it say?

William J. Butler:

It says that it’s moved in second that the Regents’ prayer be said daily in our schools and that the Board of Regent — Education give direction to the principal that this be instituted as a daily procedure to follow the salute to the flag.

Hugo L. Black:

Recommended?

William J. Butler:

Recommended, yes Your Honor.

It is — New York State has a school system which local autonomies kept in the local school districts to a certain extent.

And this was not a mandatory requirement of the Board of Regents.

It was left to the local school boards to adopt or not to adopt.

In this particular instance in — on July 8, 1958, several years after the statement came out, this local school board at a meeting by majority vote adopted this prayer and ordered it instituted in the public school of their district.

And since that time to the very — this very day, it said each day after the salute to the flag led by a teacher or by a student.

William J. Brennan, Jr.:

But what — where is the statement incorporating the Regents’ statement, where — is that in the resolution?

William J. Butler:

There is an affidavit of William J. Vitale, Mr. Justice Brennan on page 24 of the record — on page 26, Your Honor at folio 77, the — the head of this Board of Education states in an affidavit submitted in this proceeding that with such two strong recommendations by the Board of Regents and the State Administrative Officer that was brought before the Herricks Board of Education, the adoption of a prayer as part of the daily procedure, and on July 8, a resolution was adopted providing the same.

William J. Brennan, Jr.:

Well, I — but I thought you’ve suggested earlier that all of the reasons.

William J. Butler:

I take it to say it means the prayer, doesn’t it?

Hugo L. Black:

It seems it’s only the prayer that —

Felix Frankfurter:

Providing for the same, I think it had referred to —

William J. Butler:

Well, I’m not sure, Your Honor.

I think it may — may —

Felix Frankfurter:

— adoption of the prayer.

William J. Butler:

I’m not sure, Your Honor.

It may have applied to the strong recommendations by the Board of Regents.

Felix Frankfurter:

If you don’t provide for a recommendation.

You can provide for a prayer but ordinary English doesn’t provide for a recommendation.

William J. Butler:

Well, it’s our position here, if the Court please, that this affidavit of William J. Vitale does indicate that the reasons why the Board adopted the resolution it did was because it had adopted the recommenda — the Board of Regents’ statement, the recommendations of the Board of Regents in its entitlement.

Felix Frankfurter:

Am I going to refer that without the reasons given by the Board, that prayer by itself would not seem to you to be offensive to the Constitution?

William J. Butler:

It still would be offensive, Your Honor.

Felix Frankfurter:

Well, then why do we have this controversy as to whether they did or didn’t when the record isn’t clear?

Earl Warren:

Well, why can’t we have it heard if it’s a part of the background of the things?

Hugo L. Black:

On the part of your argument.

Earl Warren:

Yes.

William J. Butler:

I would rather state it Your Honor but —

Felix Frankfurter:

Well I didn’t — I —

Earl Warren:

You may.

Felix Frankfurter:

— I didn’t mean to shut you off from stating anything you want but I don’t want things to be mixed up with the difference and if the Board adopted the statement of the Board of Ed — of the Regents, that’s one thing, but if it didn’t adopt it that’s another thing.

William J. Butler:

It’s our position that it adopted by this affidavit, Your Honor.

Felix Frankfurter:

Alright.

Earl Warren:

You may argue it.

William J. Butler:

Thank you very much, Your Honor.

Anyway, after July 8, 1958 in a response to the order of the Board of Education in this particular School District, this prayer was recited daily in the public schools of this district.

Each day, after the school bell opened at school day, the students would salute the flag of the United States.

Potter Stewart:

There’s no attack upon the salute of the flag?

William J. Butler:

Absolutely none, Your Honor.

After the salute to the flag —

Potter Stewart:

That was — that was the Pledge of Allegiance —

William J. Butler:

Pledge of Allegiance.

Potter Stewart:

— as amended now officially (Voice Overlap) —

William J. Butler:

As amended, yes, Mr. — yes, Mr. Justice Stewart.

After the salute to the flag, this prayer is said.

Now, we think that the manner in which it’s said is also important in this case because if the saying of a prayer, number one, is said unison with all members of a class, participated.

Also, it’s led by a teacher in the particular classroom where the prayer is being said.

And in some occasions, the teacher nominates a nominee or a child or a student in that particular class to leave the saying of this prayer.

Initially, when this case was first started, both the saying of the prayer in the classroom and the participation by each student was mandatory.

After the decision in the lower court which entered into an interlocutory decree holding the mandatory saying of the prayer under these circumstances unconstitutional, the local school board changed its resolution, made the prayer voluntary, said that any child could be excused provided the parent of any child wrote a letter to the principal asking that the children be excused from the saying of the prayer.

Subsequent to this time, a final order was entered after the school board had instituted the voluntary procedure aspect of the case dismissing the petition.

And it’s this particular order that has gone up through the Court of Appeals of the State of New York and its present consideration here.

As it is now, the saying of the prayer is voluntary, any parent can ask the principal to have his child excuse from the saying of the prayer.

Tom C. Clark:

Where does it go?

William J. Butler:

Well, the record is void, Mr. Justice Clark, as to any request by any parent to have his child excuse from this exercise.

I can’t go outside the record except to say that no child has been excused from the saying of this prayer upon a request from his parent because such request is not — just not in the record.

We have no knowledge of any such request which we think is very important in a later argument which I hope to make concerning the free exercise part of the legal concepts which arise from these facts.

Felix Frankfurter:

For any such request made?

I mean does the record show anything?

Felix Frankfurter:

After all you made up the record, didn’t you?

William J. Butler:

The rec — yes, I did, Your Honor.

The records do not show that any request was ever made to excuse the child from the classroom.

There is some evidence in the record of one request that the child be permitted to remain silent during the saying of this prayer.

And that’s all the record says along the lines of request Mr. Frankfurter.

Felix Frankfurter:

The petitioner is a parent?

William J. Butler:

A request by a parent.

Felix Frankfurter:

No, the petitioners here are parents?

William J. Butler:

Yes, the petitioners here are parents.

They’re composed of two people of the Jewish faith, one of the faith of the society or Ethical Culture, one of the Unitarian faith and one, a non-believer.

Felix Frankfurter:

And what do they state as their grievance that they — that they didn’t want to make request or that — that’s the form of compulsion upon them to make a request?

William J. Butler:

Well —

Felix Frankfurter:

What is their exact grievance?

William J. Butler:

Their exact grievance —

Felix Frankfurter:

And stated in the complaint, not outside the record.

William J. Butler:

Yes — of course, Your Honor.

Your — the exact grievance stated by the parents and the one on which we most heavily rely is that this practice violates the Establishment Clause of the First Amendment as applied to the States.

Now secondarily, we argue legally that it also violates the free exercise part of the First Amendment and that it has the effect of coercing these children to participate in this religious proceeding.

We’re adopting in our secondary argument which I was going to get to, Mr. Justice Frankfurter, your brilliant dissertation in McCollum where you said the law of limitation applies and that known conformity is not an outstanding characteristic of little children.

And that argument was going to make very strongly on the free exercise side of our argument.

Felix Frankfurter:

So far as I’m concerned you may assume I remember it.

William J. Butler:

Well, I — thank you, sir.

To get back to the — to the saying of a prayer and the manner of which it said, it’s still said everyday in the school system.

And as I’ve said, children can be excused although there is no — not — no evidence in the record that any child actually leaves a room and the participation by the teacher and the student.

Felix Frankfurter:

Do these —

William J. Butler:

Now, legally —

Felix Frankfurter:

— parents say they don’t want their children to participate in this or they —

William J. Butler:

Yes, they do, Your Honor.

Felix Frankfurter:

They do.

William J. Butler:

Yes, absolutely.

Felix Frankfurter:

Well that’s terribly important that it was stated there.

They don’t say we uphold this but we think you have no business to do this, do they?

William J. Butler:

No, as a matter of fact —

Felix Frankfurter:

I’m trying to find out what is exactly the grievance of these plaintiffs below.

William J. Butler:

Well —

Felix Frankfurter:

I’m having a hard time trying to find it.

William J. Butler:

Well, Mr. Justice Frankfurter, I — I’d like to take one by one each of the five fathers and state each of their grievances because each of their grievances are different.

They have all what — they all though have one thing in common.

And that is, that they say that this is in violation of the Establishment Clause of the First Amendment, that this is an illegal use of state properties, state funds, state jud — educational system to aid all religions —

William J. Brennan, Jr.:

And this —

William J. Butler:

— or to aid some religions against others.

William J. Brennan, Jr.:

And it would be irrespective whether the children maybe excused or whether they may remain silent, whether — whether the —

William J. Butler:

Yes, Mr. Ju — totally irrespective of the free exercise argument under the First Amendment.

William J. Brennan, Jr.:

Incidentally on the matter of silence, I gather there’s no question that a child may remain silent.

William J. Butler:

Yes, and also a child may remain silent as much as he maybe excused.

There is no direct compulsion by the school authorities compelling the child to say the prayer.

A compulsion that we argue was subtle.

Tom C. Clark:

My excuse, you mean you can leave the room or will you just stay on mute or what?

William J. Butler:

Well, Mr. Justice Clark, that’s a — that’s a — you see the — the salute to the flag takes about 10 seconds or 15 seconds and then they go right into the prayer which takes another 20 or 30 seconds.

So the child would have to — they have to stop after the salute to the flag, and send the child out of the room somewhere and then after the prayer was said, have somebody go out and tell the child to come back in.

But the record is void of any such request.

Potter Stewart:

Now in this School District, does this to only of elementary schools?

Are we dealing only with the case involving elementary schools or the high schools involved?

William J. Butler:

High schools also.

Potter Stewart:

High school, are some of these plaintiffs parents of high school students?

William J. Butler:

Yes, now they have — they’ve been progressing along in schools since the case started.

(Inaudible)

Potter Stewart:

Is this done in each classroom or is it done in a general assembly of all 12 classrooms?

William J. Butler:

Done in each classroom, Your Honor.

Potter Stewart:

Each of what?

Potter Stewart:

12 classrooms to 12 (Voice Overlap) —

William J. Butler:

Right.

And I think that there are 60 — 8 — 12 — 12 classrooms, yes, Your Honor.

Felix Frankfurter:

Does it appear in the record?

I’m probably doing a man on this Court who went through the New York public schools and we used to salute the flag in — in the assembly, does it appear that there was an assembly in the school?

William J. Butler:

Mr. Justice Stewart, just asked the same —

Felix Frankfurter:

I’m not asking what is required.

William J. Butler:

Doesn’t it sound like (Voice Overlap) —

Felix Frankfurter:

Doesn’t appear?

There’s a general assembly room in this school where the school is gathered collectively for all sorts of exercise?

William J. Butler:

No, Your Honor, it does not appear.

Felix Frankfurter:

It does not appear.

William J. Butler:

Of course, we contend as I’ve said basically that the saying of this prayer violates the Establishment Clause of the First Amendment.

We rely very heavily on this Court’s decision on the McCollum case.

And rather than go through all of the points in the McCollum case which this Court will — will remember as one of the Justice’s remark.

I’d rather take Mr. Justice Warren’s points in McGowan against Maryland where Mr. Justice Warren compared the facts in the McGowan case to the McCollum case indicating that there were four or five major factual points in McCollum that should be applied in all of the establishment cases.

Now bearing in mind, of course, the McCollum was the only case that this Court has established violat — has held violated the Establishment Clause of the First Amendment.

First contention that we make to bring our case within the McCollum doctrine, is that the religious activities we’re during school hours.

Covered we — we call in the McCollum case this was true that the students were left out of the main classroom to go to other classrooms within the buildings to take religious instruction.

Second fact is that there was a direct cooperation in the McCollum case between state officials and religious activity and that particular instance as was cooperation between the State and sectarian religious activity.

In our case, the direct cooperation, of course, is the fact that the teacher participates in the saying of a prayer, leads the prayer and cooperates in carrying out the mandate of the Board of Education requiring religious training in the public schools to this extent.

The third factor is that tax supported buildings were used to aid in the teaching of religion in the public school system.

This was one of the — also of course, one of the main points in Zorach where this Court made it perfectly clear that in Zorach, the tax supported buildings were not used to aid religion or religions or to prefer one religion against the other.

The fourth is that the children who do not — did — did not participate in the religious instruction on the McCollum case didn’t have to.

It was a voluntary on part of the parents to send their teacher to the particular sectarian religious instruction.

Of course in our case, the same thing occurs because it is voluntary that parents can refuse to have their children participate in this religious activity.

And finally, the participation, and this is practically the same as the last point, is the same bec — because it’s limited to children whose parents consent to participate in the — in the activity itself.

There’s one major difference however between the McCollum case and our case which we think makes our case more stronger or stronger than the McCollum case and that is the fact that there’s teacher participation.

William J. Brennan, Jr.:

With the whole premise though of your argument is that this prayer is teaching, isn’t it?

William J. Butler:

Yes, Your Honor.

William J. Butler:

It’s —

William J. Brennan, Jr.:

And have you —

William J. Butler:

Well, it’s — it’s — now, the premises — the premise of our argument is that it is teaching religion — of religion in a public institution.

William J. Brennan, Jr.:

Yes, well have you concluded your argument to demonstrate that this is the teaching of religion?

William J. Butler:

Well, I — I — it’s — I can only go back one until the statement of the Board of Regents which had it as its main purpose as I read to the Court that the main function of the inclusion of this prayer in the public school’s system was “the essentiality of teaching religion” in the public —

William J. Brennan, Jr.:

Well, didn’t I understand you to say before that even if on this record it can’t be said that that statement was incorporated in this Board’s resolution, you would still be arguing that on its face, we must read the prayer as teaching religion?

William J. Butler:

Yes, I also — I would also make that point, Mr. Justice Brennan.

William J. Brennan, Jr.:

Well, now have you concluded that the argument is to that effect?

William J. Butler:

Yes, I think and also, Mr. Justice Brennan, there — there’s no dispute between me and my — and my friends as to whether or not this is the purpose of saying this prayer.

It’s consent — it’s agreed upon that the reason why this prayer is said everyday in the public schools is to inculcate into the children our love for God and a respect for the Almighty.

And there’s just no question as to whether or not this religious activity is designed to bring the children into a religious activity which in the long run my friend say will preserve the religious and even Christian heritage of our society.

John M. Harlan II:

Is that a bad thing?

William J. Butler:

No, Your Honor.

I want to make it absolutely clear before this Court that I come here not as an antagonist of religion, that my clients are deeply religious people, that we come here in the firm belief that the best safety of religion in the United States and freedom of religion is to keep religion out of our public life and not to confound as Roger Williams said the civil with the religious.

I don’t take issue with the goodness or the badness of this prayer.

I say prayer is good.

My clients say prayer is good.

But what we say here is that it’s the beginning of the end of religious freedom when religious activity such as this is incorporated in the public school system of the United States.

Felix Frankfurter:

If you don’t persuade me that this is a form of teaching, would that end the problem for me?

Why do you admit that it all turns on whether this is teaching was — was the flag salute difficulty, one that it was objectionable or coerced teaching, was that the difficulty or was it the difficulty that avowal of faith was sought to be coerced?

William J. Butler:

Yes, Your Honor, I —

Felix Frankfurter:

Do we have to go — do we have to decide that this is teaching in order to decide this case?

William J. Butler:

No, it does not — we do not.

I don’t — I —

Felix Frankfurter:

But I thought you answered that it did?

William J. Butler:

No, I said that’s one of the aspects of this case, Mr. Justice Frankfurter.

Of course, I don’t.

Of course, I know that teaching isn’t the only religious activity that’s prohibited.

Teaching of religion is the only religious activity that’s prohibited by the First Amendment.

Felix Frankfurter:

You mean you could have endless discussion whether you show the avowal of faith into epigonal called teaching or it has nothing to do with teaching?

William J. Butler:

No, an act of compelling someone to believe in a religious belief I think is also outlined by the Constitution.

Coming to the Barnette case, Mr. Justice Frankfurter which I’m very happy you brought up at this time.

In answering your question specifically in your own words, you said that an act compelling profession of allegiance to a religion no matter how subtly or tenuously promoted as bad but an act promoting good citizenship and national legions is within the domain of governmental authority.

And I think that — I agree with that statement.

And that’s if this act — if this prayer, and we say it does, is an act compelling profession of allegiance to a god that that’s an illegal activity also barred by the First Amendment, by the establishment.

John M. Harlan II:

Supposing instead of — this resolution providing for a prayer that the resolution said that it should be a 10-minute period of Bible reading led by the teacher, would that be unconstitutional?

William J. Butler:

Mr. Justice Harlan, of course, that’s not the facts of my case.

John M. Harlan II:

No.

William J. Butler:

And I would ra — to answer that question legally and as a — as a lawyer, I would have to know a great deal more about the circumstances surround the saying of the Bible.

But let’s assume it just — excuse me.

Yes, sir?

John M. Harlan II:

That’s alright.

William J. Butler:

Let’s assume —

John M. Harlan II:

Assume my question.

William J. Butler:

You just assume that just the Bible reading be said in the public school system 10 verses of the Bible.

Your Honor didn’t mention which version, the King James Version or the Douay Version?

John M. Harlan II:

Well, King James Version is my question.

William J. Butler:

Well, I would — I would say — I would agree with the holding in the Schempp case, Schempp against Abington which has been recently re-decided in Philadelphia, three-judge constitutional court, that the saying of the King James Version of the Bible which is the box in that case was unconstitutional as an attempt by the State to insert in its compulsory institutions an act of religious prayer.

Felix Frankfurter:

Well, that raises — that problem —

William J. Butler:

That’s not the question in this case.

Felix Frankfurter:

— very different question.

William J. Butler:

Yes, Your Honor, quite different question in this case.

Because this case —

Felix Frankfurter:

Suppose instead of —

William J. Butler:

— is not the Bible, it’s the State making up the prayer.

Felix Frankfurter:

Suppose instead of reading — reading any version of — the version of any one of the Bible, is the provision for five-minute silence does silent adaptation?

William J. Butler:

Did you add the word “meditation”, Mr. Justice?

Felix Frankfurter:

Of silence for purposes of meditation.

William J. Butler:

I can’t — I would say that that is not — I don’t see any argument first unconstitutionality.

Felix Frankfurter:

That wouldn’t bother.

Felix Frankfurter:

That would not bother you.

William J. Butler:

Not as you state it Your Honor.

I will reserve my right to inquire into any additional facts.

Felix Frankfurter:

Well, I haven’t given any, I just —

William J. Butler:

Excuse me.

William O. Douglas:

How about reading the passages from the Quran?

William J. Butler:

I would definitely without any hesitation, Mr. Justice Douglas, say that it was unconstitutional.

Hugo L. Black:

Why?

William J. Butler:

Because I think any religious act, any attempt by the State to impose any religious view or to engage in any kind of religious activity if the purpose of the saying of the prayer is to compel a belief in a religion.

Hugo L. Black:

I really — really have to —

William J. Butler:

Of course, I draw a distinguished — I distinguished between teaching religion and teaching about religion which is a quite —

Hugo L. Black:

I really asked you the question why because you do such — apparently quick distinction between that and reading another religious book called the “Bible”.

William J. Butler:

Well, if the purpose of — of the reading of the Bible is to inculcate into the children a belief in a religion, I think this is activity on the part of State inspired by the First Amendment.

Hugo L. Black:

Suppose this prayer invoked some other god besides the — the one it apparently invoked.

William J. Butler:

It would still be unconstitutional I think.

That’s the distinguishing fact that this Court made in the Torcaso case.

This Court said in Torcaso that theistic religions are only one kind of religion.

There are also non-theistic religions.

There are concepts — religious concepts which don’t have God as their ultimate goal.

Buddhism, American Culture Society, Taoism, Human Secularism, all of those religions were mentioned by this Court in the Torcaso case when it said that belief does not have to be in a theistic religion.

It can also be a belief in a non-theistic religion.

And equally thereby by the First Amendment if the purpose of the used is to use the State to impose upon or to inculcate into children a belief, any — any religious belief.

I think the Constitution is involved.

William O. Douglas:

That would include Zen, Zoroaster — I’m talking about any of the — any of the books that are identified with religious movement, Book of Mormon?

William J. Butler:

If the reason, Mr. Justice Douglas, is a re — is a religious reason, but the purpose is to use the state authority to — to promote one religion regardless of what it is of course it’s unconstitutional.

I wouldn’t bar it from the public schools nor do I think this Court would sustain any principle of teaching about religion.

I think that’s part of the concept of public education that all subject should be free to be taught in the public school.

But when it engages in religious activity, where the avowed purposes to promote religion, one religion, all religions and I think this is barred.

It’s a kind of activity by the First Amendment.

I’d like if I — if I may step — go a step further in discussing the free exercise side of the — of the First Amendment because we think that not only does this set of facts of this religious activity violate the Establishment Clause and also the Free Exercise Clause.We’re cognizant of the fact that the saying of this prayer is voluntary and that no one is actually — no child is actually expressly compelled to say this prayer.

William O. Douglas:

I would suppose the fact that’s in a school it makes it a distinctive problem does it?

The fact that it was — it would be in the halls of legis — of a legislature be the same?

William J. Butler:

Well, I’d — I’m —

William O. Douglas:

Any public institution supported by tax funds —

William J. Butler:

Yes, that — that makes a great difference for — for two main reasons, Your Honor.

William O. Douglas:

— or this courtroom where we have announcement every time we come in, “God save the United States” and so on and so forth?

William J. Butler:

Sounds familiar with Your Honor’s opinion in the — you mention that in the Zorach case.

There are two main distinguishing facts —

William O. Douglas:

That was just long before Zorach.

William J. Butler:

Well, if I remember Your Honor reminding himself in Zorach.

Yes, I think there is a great difference.

Felix Frankfurter:

We haven’t decided whether it’s constitutional or not, have we?

William J. Butler:

What side, Your Honor.

Felix Frankfurter:

We have not decided whether compulsory prayer in the halls of Congress is constitutional.

William J. Butler:

No, no — it has not been decided from this Court.

William O. Douglas:

Is that case on its way here?

Felix Frankfurter:

It could be, it could be —

William J. Butler:

It is, Your Honor, I’m glad I’m not bringing it.

Felix Frankfurter:

I don’t see why you escape — why you seek to avoid it.

It could be if some (Voice Overlap) —

William J. Butler:

Yes, Mr. Justice Frankfurter.

As a —

Felix Frankfurter:

— object to it.

William J. Butler:

Yes, sir.

As a matter of fact, I’m recalled — I recall very vividly readings the Madison’s attack on chaplains in the House of Representatives and in the — in the Senate.

Madison took a distinct position that he thought that the use of chaplains by both sides of the House was unconstitutional.

William O. Douglas:

That would be a justiciable not a political question, you’re saying?

William J. Butler:

I — no, Your Honor, I think it — I think it could make a First Amendment (Inaudible)

I would not — I’d rather not attend to it.

William O. Douglas:

I’m sorry I want to ask you (Inaudible).

William J. Butler:

But getting back to your original question, I do make a dis — distinction between saying a prayer in the halls of — an invocation of “God save this Honorable Court” or “In God we trust” or so many other illustrations of our national background that take place on our sight.

Here, there are two distinct differences.

One is, of course, that the public school system is compulsory that every — every child is obligated to go to school.

Second is of course that’s teaching.

Its vowed environment which it says, a teaching environment and when it’s participated in by — directly by state officials, I think that makes no doubt in my mind and I hope in yours that this is an activity prohibited by the First Amendment.

John M. Harlan II:

Supposing this resolution, this Board resolution that said there should be a period right after the flag’s salute of — or affirmation of beliefs that those who believe in God that should assert it and assert it according to their own denominational methods or — and that those who are disbelievers or agnostics or atheists could assert their disaffirmation to such belief, would that be — would that be unconstitutional?

William J. Butler:

Was this be said allowed?

John M. Harlan II:

Yes, but everybody according to his own beliefs (Inaudible) by his own beliefs.

William J. Butler:

Yes, I — I think the argument was made in McCollum that all — all McCollum was — was letting each one go to their own religious instruction and assert their own beliefs.

And this — and this Court held in a very strong opinion eight to one Mr. Justice Harlan that the use of the public school itself, the physical use of the public school to aid all religions, to aid all sectarian religions even though the non-believer would — didn’t have to go was an illegal use of state property under First Amendment, Mr. Justice Reed only dissenting.

Hugo L. Black:

I would suggest the probability you are not like that that have to argue one like that.

William J. Butler:

Thank you, Mr. Justice Black.

I agree with (Inaudible) learned justice.

On the free exercise side, we submit to the Court, isn’t this really compulsion?

Would the little child or would Johnny leave the classroom or would the parent be expected to ask the school system to excuse his child or who maybe singled out as a nonconformance.

And I must adapt Mr. Justice Frankfurter’s thesis in — in McCollum that the law of limitation applies.

Little children want to be with other little children.

Very few parents, if any, would want to excuse their children from this kind of an activity which it must be remembered as accepted in the large majority by the community which it set.

The effect would be to cast upon this child’s mind some indelible mark.

And I think that they can be — can be sustained that in effect, the children are coerced in the saying of this prayer because of these reasons.

I’d like to bring up a case which is not in point but which I think has a judicial philosophy that maybe important here.

That’s Brown against the Board of Education.

Brown against the Board of Education has as its nemesis or as core a statement to the effect that to separate children from one another solely because of their color, solely because of their color, may leave an indelible mark upon that child for the rest of his life.

It was suggested by this Court that such discrimination, such separation would not be permitted.

Isn’t the same judicial philosophy present in this case?

Aren’t we in effect saying that if a child can be excused from school voluntarily, we’re taking that child out of an environment?

Isn’t that a — isn’t solely because of a religious belief because he doesn’t believe in the way the prayer is being said or he believes he should pray in another way or he believes he should wear a Yamaka or it believes that he should take some other form — traditional prayer.

Isn’t that an unfair separation which in effect could leave an indelible mark on his mind because of his religious belief?

Now, I would like to, for a few moments, address myself to the arguments of my friends.

My friends made three major arguments.

William J. Butler:

Their first argument is that this case falls within the Zorach doctrine.

They cease upon Mr. Justice Douglas’ statement that we are a religious nation whose institutions presuppose a Supreme Being.

And that the State may act to accommodate religion, that the State should not be antagonistic towards religion and that the duty of the State under certain circumstances is to promote or to safeguard the religious heritage of our nation.

I say that this prayer really is only an accommodation to religion and it’s not only permissive but it’s the obligation of the State to preserve our heritage.

We say of course that this case does not apply.

Many distinguishing factors occur, one of course is that in Zorach, this Court specifically sustained or reaffirmed the McCollum Doctrine and the activity there was outside of the school system, not within the school system.

There was no direct participation by the State in the religious activity complained of in Zorach as it was in the McCollum case.

And we also say that Zorach, although stating that the State can cooperate in certain areas with religion, cannot be construed the whole that it would condone a religious activity of the State where the State itself composes its own prayer and then it’s instituted — instituted in our compulsory institutions.

Second argument my friends made is the argument raised earlier by or suggested earlier by Mr. Justice Frankfurter, Barnette against the Board of Education.

They say that this Court should follow Barnette because in Barnette, the Pledge of Allegiance was not stricken down.

Only the voluntariness of the Jehovah’s Witnesses was sustained.

In other words, they say that here, the prayer should be said and if — or as long as the children are excused from saying it.

Of course, the prime distinguishing fact between that case and our case is as Mr. Justice Frankfurter said, one is the — an act of allegiance or a political faith and the other is an act of religion.

One is barred by the Constitution, we suggest, the other is not so barred.

Third argument that my friends made is that the petitioners in this case are in the minority, that they do not represent a cross section of the community.

They boldly argue that the majority should control in this particular instance, and if this is a case where the minority is imposing its views upon the majority, of course, our answer to that is simple.

We say that the Constitution, the very purpose of the Constitution is to protect the minority against the majority.

It’s to protect the weak against the strong in matters of keeping separate forever the functions of the civil and the religious.

Finally, they make the argument that we do not object only to the prayer but that we object to God in general in public institutions, an argument which I cannot accept nor can I let go without answering before this Court.

My clients, four out of five are deeply religious people.

They come here not as antagonist to religion.

They come here not to destroy religion but in the hope that they can persuade this Court and its long traditions from the Virginia Bill of Religious Liberty form Madison’s Remonstrance down through the times that it’s best not to confound the civil with religious.

William O. Douglas:

Well, their standing would be as good if they were agnostics, wouldn’t it?

William J. Butler:

Yes, and also as to the non-believer, of course, we take the basic position that the rights of a non-believer are as important in the constitutional history as the rights of the believer.

A state can no more prefer one religion as against another but it can’t compel one to believe or not to believe.

This is our prayer unlike —

Potter Stewart:

Mr. Butler, earlier in your argument, you started to say that each one of the plaintiffs had a different grievance about this prayer and then you — then you proceeded to say that they had one thing in common and you told us what that one thing was.

I don’t know if you are really telling us what their separate, individualized grievances were.

William J. Butler:

It’s not in the record Mr. Justice Stewart but I —

Potter Stewart:

Well, I thought it was in the complaint.

Potter Stewart:

I thought it was.

William J. Butler:

It is not, except that it does say that generally, that the saying of the prayer and the manner in which it’s said offends some religious beliefs of the Jew, the Ethical Culturist and the Unitarian.

But it doesn’t go any further than that, we asked for a trial to develop the facts but of course that trial was denied.

Potter Stewart:

I was interested in this point because you’ve now concluded by saying that of your five clients that at least four of them are deeply religious people.

I assume they believe in God, do they?

I assume that’s what you mean by — in saying that they’re deeply religious.

William J. Butler:

Well, no, that isn’t what I mean at all Mr. Justice Stewart.

Potter Stewart:

They don’t believe in God?

William J. Butler:

One of our clients is an Ethical Culturist.

Potter Stewart:

Well, you — I — let’s imply ourselves as to the four.

William J. Butler:

One of the four is an Ethical Culturist.

Potter Stewart:

I thought you — you are five in all?

William J. Butler:

Yes, five in all.

Potter Stewart:

One is an Ethical Culturist.

William J. Butler:

Right.

Now, that —

Potter Stewart:

Now, how about the other four?

William J. Butler:

— the other — the other three, one is an agnostic —

Potter Stewart:

Five, take away one is — is four.

William J. Butler:

Right.

Then an agnostic does not believe in God.

Potter Stewart:

Right.

William J. Butler:

And then there are two of the Jewish faith who, of course, believe in God.

Potter Stewart:

Believe in God.

William J. Butler:

And one was a Unitarian who believes in God.

Potter Stewart:

Believes in God.

So, as to those that might there — is there a question as to their standing?

All of these prayer involves is the affirmation of a belief in God and dependence upon him.

William J. Butler:

Yes, but they’re — they think —

Potter Stewart:

It doesn’t talk about a Christian God.

Potter Stewart:

It doesn’t talk about a — certainly and does — doesn’t talk about a Methodist or an Episcopalian or Presbyterian.

William J. Butler:

No, it talks about a “He”.

It says a “Him”.

Potter Stewart:

Right.

William J. Butler:

And also it refers to “Thy” and to “Thee”.

Potter Stewart:

Yes.

William J. Butler:

Of course, in the Jewish religion, Mr. Justice —

Potter Stewart:

I suppose there are some Christian religions who believe the reason which might — might possibly take technical offense at that and say, we believe in eternity.

William J. Butler:

That’s correct.

Also, the Jewish religion, Mr. Justice Stewart, doesn’t necessarily believe in a “He”.

It believes that God is coming.

Now, what form that God is going to take may be a different matter.

Potter Stewart:

I did in a lot of archive to see in a large scope this course but the people of the Jewish faith believe in God, do they not?

Jehovah?

William J. Butler:

Oh, yes, yes.

Of course they, do Mr. Justice.

Potter Stewart:

So, what is there in this prayer so far as the complaint shows and without getting into a theological discussion, what is there in this prayer that the people of the Jewish faith find objectionable?

William J. Butler:

Well, first of all, you have accepted — you’ve heard my establishment argument.

Now, they have a standing even if its not objectionable to them to say that in the long run, this is a — not a proper function of the State because it violates the Establishment Clause of the First Amendment.

Their reasons could be projected reasons as to the effect of religious prayer by the public, by the State on their own religions over long periods of time.

Now, in the free exercise side of the religion, they object for instance to the manner in which it said.

Orthodox used, Mr. Justice Stewart, they pray only in the synagogue.

What’s more?

They pray only with Yamakas on.

And once more, they pray some of them facing east.

The manner in which it said, the type of the prayer —

Potter Stewart:

Because is — is there anything in the complaint as to the manner in which it said?

I understand the place that (Voice Overlap) —

William J. Butler:

Yes, it’s in the record.

Yes, Your Honor.

William J. Butler:

That’s — second —

Potter Stewart:

It’s been in a school and not a synagogue.

William J. Butler:

Yes, of course.

Potter Stewart:

And of course there’s nothing here — in here requiring anybody to face to the north, south, east or west.

William J. Butler:

No, it’s also in English and the Jews only believe you should pray in Hebrew.

Potter Stewart:

And a great many people — good many, the Catholic — Roman Catholic service is in Latin.

William J. Butler:

Yes, Your Honor.

Potter Stewart:

What does that have to do?

William J. Butler:

Well, I think that a Catholic — I think that could be a secondary objection on the part of the Catholic to the constitutionality of this — of this prayer.

Potter Stewart:

One other question, how do you — as I understand it, you have no objection or at least have not objected to the — to the saying — to the saying of the Pledge of Allegiance to the Flag.

William J. Butler:

No, I have no objection to it, Your Honor.

Potter Stewart:

I was stating —

William J. Butler:

I agree with Mr. Justice Frankfurter that that’s an affirmation of a political utterance and not a religious utterance.

Potter Stewart:

Well, it now includes in its language the expression, “one Nation under God”.

William J. Butler:

Right.

Potter Stewart:

Now, I hope they restrain that and — and this affirmation of — to believe in God.

William J. Butler:

Well, Mr. Justice Stewart, the — the difference I — I respectfully submit is that the general purpose and the general word and the general reason for the salute to the flag is a — an allegiance to the United States.

Potter Stewart:

Under God?

William J. Butler:

It’s under God, yes.

But it’s a political —

Potter Stewart:

Under God.

William J. Butler:

It’s a politic — under God, yes.

It’s a political affirmation.

The whole tenor of the — of the utterance is not religious whereas the utterance in this particular case is solely religious.

Potter Stewart:

The preposition under presupposes and — and implies the dependence upon a Supreme Being by this entire nation, doesn’t it?

William J. Butler:

Yes, that’s correct — well that’s not a — if not — dependence upon a God, Mr. Justice Stewart.

Potter Stewart:

Yes, iden — a Supreme Being identified by the word “God”.

William J. Butler:

Yes.

Potter Stewart:

Now, what’s the difference between that and this prayer?

William J. Butler:

One is a affirmation of allegiance to a country and the other is a — act of political — of religious faith?

Potter Stewart:

I don’t know — I don’t think you’ve answered it because the —

William J. Butler:

Maybe I can answer it better Mr. — in the words of Mr. Justice Frankfurter.

Potter Stewart:

The Oath of Allegiance was differently worded at the time Mr. Justice Frankfurter wrote that.

William J. Butler:

That’s correct, yes.

The words under God were not included.

But I don’t think I sub — I respectfully submit Mr. Justice Stewart that that is not — that does not change the phase of —

Potter Stewart:

De minimis — de minimis, is that your point?

William J. Butler:

No, it does not.

Potter Stewart:

Does the time of (Voice Overlap) —

William J. Butler:

I don’t think it has any bearing on it because I don’t think that the Salute to the Flag is an attempt by the State to insert into its compulsory institutions an act of religion.

I think it’s merely an act of political faith in the country.

Potter Stewart:

What do you —

William J. Butler:

And I withdraw that distinction.

Potter Stewart:

What do you do about that phrase?

I — that’s what you haven’t answered at least to my — so I haven’t (Voice Overlap) —

William J. Butler:

Well, it — if — if this Court would be willing to place the construction upon the Salute to the Flag as you have just suggested that it — that the purpose is to of — to inculcate into the children a belief in God and a pre — and the pre — if that is the purpose, then I would have to suggest that there’s an argument of foreign constitutionality.

Felix Frankfurter:

Well, is the pre —

William J. Butler:

But I don’t think that’s the purpose.

Potter Stewart:

But what do you suggest that phrase means, “Under God — one Nation under God”?

William J. Butler:

Well, I think it — I — I personally think — of course I can’t interpret the minds of Congress and when they put it in there.

I think it means, a manifestation of a — the Christian belief and —

Potter Stewart:

Not necessarily Christian, is it?

William J. Butler:

Well, I think it does, Your Honor.

Potter Stewart:

And you might —

William J. Butler:

I think that’s the basic reason behind it, but that would be 72 interpretations.

Felix Frankfurter:

We’ve had a flag salute — we’ve had two flag-salute cases before it.

William J. Butler:

Yes, Your Honor.

Felix Frankfurter:

The fla — the validity of the flag salute in the New York schools now before us?

William J. Butler:

No, Your Honor, it’s not before you.

Felix Frankfurter:

I’d like to ask you this question, before Justice Stewart’s question.

Felix Frankfurter:

I hastily tried to read the petition.

Does the petition anywhere allege that any of your five objectors, I mean your five present petitioners object to the content of this prayer?

William J. Butler:

Oh, yes, Your Honor.

Felix Frankfurter:

I find lots of allegations about objecting to the saying of it.

William J. Butler:

No, it also —

Felix Frankfurter:

My specific question is, well, it takes faith, you said the — the Jewish faith of some Jews, their prayers must be said collectively only in a synagogue.

William J. Butler:

Yes, Your Honor.

Felix Frankfurter:

But it doesn’t say that petitioner Steven I. Engel is an Orthodox Jew, he says he’s a member of the Jewish faith.

And I don’t suppose you deny that many services in many synagogues throughout this country are entirely in the English language.

William J. Butler:

No, of course, Your Honor.

Felix Frankfurter:

So —

William J. Butler:

And many services in the Catholic faith are in English language also.

Felix Frankfurter:

Well, that’s one of the controversial questions in that — in reading lately in regard to what the Pope will allow and won’t allow.

But as to Steven I. Engel, it doesn’t say that he defend his religious convictions or beliefs that this collective prayer is said in a classroom rather in a synagogue.

Now —

William J. Butler:

May I re —

Felix Frankfurter:

— there is an allegation —

William J. Butler:

May I —

Felix Frankfurter:

— the content, namely the meaning, not the saying of it, the meaning.

I’m not saying it is and I just like to refer to.

William J. Butler:

If Your Honor please, folio 44 at page 15.

Felix Frankfurter:

Folio 44.

The saying of that prayer and the manner and setting in which it is said, constitutes the teaching of religion.

I believe in this — this content of religion and religious practices of a substantial number of other parents.

Now, if I — if I — unless that — unless I have your guidance to the contrary, the saying and the manner and setting in which it is said, constitutes the teaching of religion.

I want to know if anywhere there’s any kind of clear statement who of your petitioners is or are offended by the — by the — what is said, not the fact that it is said.

William J. Butler:

Yes, I see Your Honor.

I would like to make this distinction and I think Your Honor has pointed to something which is important here.

We don’t claim, Mr. Justice Frankfurter, that the prayer is unconstitutional.

A prayer in our opinion cannot be unconstitutional.

William J. Butler:

There’s no legal significance, no legal interpretation.

Felix Frankfurter:

Well but —

William J. Butler:

All we say is —

Felix Frankfurter:

— is going to interrupt the whole — not the whole, but the basic problem with reference to the reading of the Bible, the question of Justice Harlan, asked you about terms on the fact that to — one of the important of the major religious beliefs in this country reject the King James Version, and therefore to subject children, I’m not expressing an opinion on that, I’m just stating what the view is, and therefore, to subject children to the reading of the King James Version, New English — “The New English Testament” is subjecting them to — to religious utterances contrary to their faith because they have a different authorized version, namely “The Catholic Bible.”

William J. Butler:

Right.

Felix Frankfurter:

But that is — so that there is a diff — there is an objection to the Bible cases to the content of what it says.

William J. Butler:

Yes.

Felix Frankfurter:

To my knowledge, as well as the fact that — I’m now asking you whether there’s any such allegation in this petition, I’m not even saying that that’s a (Voice Overlap) —

William J. Butler:

You’re going to the sectarianism of the prayer.

Felix Frankfurter:

Pardon me?

William J. Butler:

The sectarianism of the prayer.

Felix Frankfurter:

Well, I haven’t said it was sectarian.

All I —

William J. Butler:

No, but the sectarianism of the prayer as I understand Your Honor’s question.

Felix Frankfurter:

Not sectarianism, but difference.

We’re not choosing here between different religious beliefs.

But the point of the Catholic parents in the — in the Bible controversy is this, that their children — their authoritative ecclesiastically or days official, if I may use that adjective, Bible is a Douay not the King James Version, how ever beautiful that may be.

And therefore, you make Catholic children listen to formulations that they reject.

William J. Butler:

Correct.

That’s also true in our case.

Felix Frankfurter:

Well now, point that out in the — in the petition.

William J. Butler:

Because the prayer itself, Mr. Justice Frankfurter, is a theistic prayer.

And we have two of our friends —

Felix Frankfurter:

But the Jew (Voice Overlap) —

William J. Butler:

But non-theistic religions.

Felix Frankfurter:

But Mr. Engel —

William J. Butler:

And this is an attempt to put — to force down the throats of believers in non-atheistic religion, atheistic prayer in the man’s sense, the content of the prayer’s objection —

Felix Frankfurter:

How many of your petitioners are nontheist?

William J. Butler:

Two.

Felix Frankfurter:

Alright.

Felix Frankfurter:

Then you can speak for those two, but Mr. Engel has been in that position.

William J. Butler:

Well, he says that the manner in which it said in the setting —

Felix Frankfurter:

The manner isn’t matter.

William J. Butler:

I’m sorry, Your Honor.

I can’t say that this — that the prayer itself is unconstitutional.

Felix Frankfurter:

Alright.

William J. Butler:

It has to be taken in — in con — in the context in which adduce by the State, the manner which it said, and how it’s said in the whole factual pattern.

William J. Brennan, Jr.:

But Mr. Butler you — I’m still puzzled whether how much of your argument raised — rest basically on the notion that this is teaching religion.

You said earlier, I think, that you answered me first that it — much of it did, and then later you withdrew that.

William J. Butler:

Well, I say that our argument is equally important for — for two reasons.

One is that the prayer is re — is religious teaching in the school and admitted by — by my friends.

William J. Brennan, Jr.:

Well now, in that respect, how do you differ “God save United States” in this Honorable Court?

William J. Butler:

Because that’s not the teaching of religion.

That’s not an a — an attempt by the State to use its power and its systems and its great authority —

William J. Brennan, Jr.:

Because it’s not in the schoolroom.

William J. Butler:

— to inculcate into children the teaching of religious concepts.

William J. Brennan, Jr.:

Well then, do you come back, basically, that your argument does rest on the proposition that this prayer is the teaching?

William J. Butler:

That’s one item.

That’s one half.

The other half of course, Mr. Justice Brennan, is that, this is a religious practice.

And that is equally barred.

William J. Brennan, Jr.:

Well that — under the free exercise or the establishment.

William J. Butler:

Under the Establishment Clause of the First Amendment.

This is a ritual-based prayer said in a ritual.

It’s a practice of religion in the state, in state owned institutions, led by leader of the State.

William J. Brennan, Jr.:

But because it’s a schoolroom.

William J. Butler:

But becau — in this particular instance, because it’s a school, yes — yes.

Felix Frankfurter:

And your — what you’re saying, Mr. Butler, if I understand your argument, if there were schools in which concededly every member of the school was a — was a communicant of the Episcopal Protestant Church and the Lord’s Prayer, as sanctioned by that church, are required to be uttered at a morning assembly a devout Episcopal — Episcopalian parent could object to having that prayer said.

You would have legal standings and objectives.

William J. Butler:

Yes, Your Honor.

Felix Frankfurter:

Although, it precisely the prayer that is uttered in the petition of that petitioner’s church every Sunday morning.

William J. Butler:

Yes, Your Honor.

It violates the establishment —

Felix Frankfurter:

Alright.

William J. Butler:

— side of the person.

Felix Frankfurter:

Now you get down to a real legal (Voice Overlap) —

William J. Brennan, Jr.:

One last question, Mr. Butler.

Suppose this prayer in the schoolroom were “God save the United States and the school”.

William J. Butler:

It’s Your Honor’s interpretation that that is a prayer.

William J. Brennan, Jr.:

It’s not my interpretation of anything.

I’m trying to find out —

William J. Butler:

You said that the prayer.

William J. Brennan, Jr.:

— (Voice Overlap) of your argument.

William J. Butler:

You said that the prayer which you said —

William J. Brennan, Jr.:

Supposed it followed up the salute to the flag, instead of with this prayer —

William J. Butler:

Right.

William J. Brennan, Jr.:

— with each children in unison saying, “God save the United States and this school”.

William J. Butler:

I would first have to determine in order to answer your question.

William J. Brennan, Jr.:

The same — everything is exactly the same as it is in this case.

William J. Butler:

You mean there’s a —

William J. Brennan, Jr.:

Except that —

William J. Butler:

— there’s a —

William J. Brennan, Jr.:

— instead of this Regents’ prayer that was the one that I — prayer (Voice Overlap) —

William J. Butler:

And that —

William J. Brennan, Jr.:

or not —

William J. Butler:

— and the state authorities have said that the reason why we think —

William J. Brennan, Jr.:

Everything is exactly —

William J. Butler:

— that you go into school to —

William J. Brennan, Jr.:

— the same.

William J. Butler:

— teach religion —

William J. Brennan, Jr.:

Everything is exactly the same as it is in this case except that’s what’s said by the children instead of Regents’ prayer.

William J. Butler:

I would — I would have to say, if — as in this case, the purpose is to inculcate into the children the love for God, and to have a — the teaching of religion in the schools that I would have to say would be unconstitutional under First Amendment.

William J. Brennan, Jr.:

Alright.

And you do come back that this is teaching religion.

William J. Butler:

No, I do not Your Honor.

I come back one, to its teaching religion.

And two, that it — that this goes further than your hypothetical question and that it is a religious practice.

It’s an act of reverence to a — to the God.

It’s man’s — it’s — it’s man’s holding his hands together in an act of prayer.

It’s a religious ritual, a religious activity, which is also abided by the First Amendment, and I can’t abandon that argument Mr. Justice Brennan.

Felix Frankfurter:

It is your conclusion, it is your ultimate position that our public schools — I’m going to ask you a question that requires some candor on your part, and I can see that’s the duty of lawyers to have candor about their position.

William J. Butler:

I hope, I —

Felix Frankfurter:

Is it — is it your position that our public schools, by virtue of our Constitutions, are frankly secular institutions?

William J. Butler:

Absolutely, yes.

I say that our public institutions like — public school —

Felix Frankfurter:

I didn’t say public institutions.

William J. Butler:

Our public — the public school system —

Felix Frankfurter:

I said (Voice Overlap) —

William J. Butler:

— the public school system can never be used by the State for religious purposes.

I think that that avenue is wisely brought to, Mr. Justice Frankfurter, by men with great foresight in an attempt to protect religious freedom in the long run.

That is all.

Earl Warren:

Very well Mr. Butler.

William J. Butler:

Thank you, Mr. Chief Justice.

Earl Warren:

Mr. Daiker.

Bertram B. Daiker:

Mr. Chief Justice, and may it please the Court.

I would, at the outset, explain that I am representing the Board of Education which adopted the resolution instituting the Regents’ prayer as a part of the — the daily opening exercise.

Mr. Chandler here is dividing his time and I’m dividing my time with him, he is representing a group of taxpayers and interested parents within the School District, having children now attending there, who likewise feel that the prayer is sound, and the saying of it is not unconstitutional.

William O. Douglas:

Is there any question in this case about the standing of these people?

Bertram B. Daiker:

No, sir.

I would first of all correct any impression that may have been left during Mr. Justice Stewart’s inquiry as to what the prayer says because we heard that it included the words “He” and “Him”.

Bertram B. Daiker:

And for clarity, we should again refer to it as reading.

Potter Stewart:

Well, Mr. Daiker —

Bertram B. Daiker:

Yes, sir.

Potter Stewart:

— you’re not urging any question of standing but I’ve taken that it’s something we haven’t decided.

Bertram B. Daiker:

Standing as to the petitioners —

Potter Stewart:

Yes.

Bertram B. Daiker:

— and the individual respondents.

Potter Stewart:

As to the petitioners.

William O. Douglas:

I was thinking that there (Voice Overlap) —

Bertram B. Daiker:

There has been no question raised about that for you to decide Your Honor.

William O. Douglas:

Was there any question raised in the New York Courts?

Bertram B. Daiker:

No, sir.

The petitioners at the outset of this proceeding have — have children in school and now do.

William O. Douglas:

And they’re taxpayers?

Bertram B. Daiker:

And are taxpayers.

William O. Douglas:

Does New York — under New York law, would they have standing if they were sued only as taxpayers?

Bertram B. Daiker:

Well then of course, we would get into diremos in the question of pocketbook injury.

I doubt if they would have a standing to complain unless under the decided cases, they could show that their interest was specific.

I think it has been said that where a person’s grievances in general with all others, he has no standing particularly to sue.

He must show a personal effect on himself.

This was part of what this court said in McGowan.

William O. Douglas:

Well, so — some have set that in.

Bertram B. Daiker:

Yes, sir.

If I may, I would just repeat this prayer because of the use of the language that we had referred to.

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country”.

And I — Mr. Justice Stewart specifically wanted to correct that impression.

The Herricks School District on Long Island consists of seven schools, five elementary schools, a junior high school and a senior high school.

I state that to clarify in the Court’s mind what is affected here.

Potter Stewart:

Five elementary schools?

Bertram B. Daiker:

Five elementary schools.

Potter Stewart:

Junior high school and senior high.

Bertram B. Daiker:

A junior high and a senior high.

Potter Stewart:

So this involves, perhaps kindergarten but in any event, 1st through the 12th grade.

Bertram B. Daiker:

Correct, sir.

Potter Stewart:

In these various schools.

Bertram B. Daiker:

There are a total of slightly an excess of 5400 children attending these seven schools.

This prayer has been instituted and been used down since 1958.

At the time of the institution of petitioners’ suit, there was a single request for an excuse from participating.

There was no request to be excused from the classroom and to this date, there has been none.

We have heard the petitioners say, that their cas — case rest primarily on whether religious teaching is involved.

Is this a religious teaching?

And here is where my friend and I depart in our thinking.

Since the earliest days of this country, going back to the Mayflower Compact, the men who put the country together have publicly and repeatedly recognized the existence of a Supreme Being, a God.

There have grown in this country and in this world many branches of religion, most of which recognize a deity.

There are people, however, who go to no organized church and are not part of any particular religion who likewise believe in that deity.

When therefore, we say here, this prayer which Mr. Justice Frankfurter characterized as an avowal of faith, an avowal which recognizes that there is some Supreme power, some Supreme Being.

We are proceeding fully in the Court with the tradition and heritage which has been handed down to us.

We know, of course, that in the Declaration of Independence, we have four references to the Creator, to the Supreme Being who gave us his — gave us our unalienable rights.

We can’t rewrite history now.

Those words are emblazoned in that document, and they will always be with us.

Our colonies, one by one as they adopted the Constitution, recognized the existence of an Almighty God, a Supreme Being.

And as of today with our 50 States, 49 out of the 50 so recognize this.

Indeed, if the Court in its review of the briefs at a later date will examine in Appendix A, we have collected extracts from either the preambles or the constitutions of 49 of our 50 states.

We will find there language quite comparable, one after another starting out, “We, the people of the State of Arkansas or New York, grateful to Almighty God for his blessings and — and acknowledging our dependence upon Him”.

These are the Constitutions which protect the rights of the citizens of the states.

And in an effort to arrive at a prayer which would continually recognize that Supreme Being as part of the opening exercises at our schools, the words were lifted, if you will from these preambles and constitutions, and made a — a part of this prayer.

So we go back again to saying, “Almighty God, we acknowledge our dependence upon Thee”, as a paraphrasing of what appears in most of our state constitutions.

I might say that this is not just my characterization of those state constitutions either.

The Court has before it now, a brief submitted by 19 out of 20 states which have now sought intervention in this case.

19 Attorneys General have said, “We don’t believe that this violates our state constitution and we urge upon the Supreme Court that this practice continue”.

Bertram B. Daiker:

The 20th of course is our own New York State where a brief has been filed on behalf of the State Education Department urging again that the prayer be continued and that of the saying of it not be held unconstitutional.

Now, we’re not unfamiliar with Zorach against Clauson and the McCollum case and the Everson case.

And we realize the reliance in those cases on the words, “Separation of church and state”.

We recognize also that — that in those cases, the courts used language which said, “The state and religion need not be hostile to each other, it need not be alien and unfriendly, but that there is an area of accommodation which can be made between the state and religion”.

And this was after reviewing a background of how the First Amend — Amendment evolved, and how we got to the words “Congress shall make no law respecting an establishment of religion” which we recognize under the Fourteenth Amendment then becomes applicable to our State of New York and to its smallest subdivisions or School District.

We recognize that that First Amendment applies as much as to the Herricks School District as it does to Congress.

But after tracing the history of that, many courts have said, “None of that language prohibits a religious state.

It may well prevent and prohibit a state religion but not in reverse”.

This Court has said many times, “We are essentially a religious people”.

They’ve repeated that in Zorach.

But we are not trying here in the Herricks School District to teach religion, as my friend has characterized it, anymore than this Mr. Justice Brennan, asked the question on the prayer used in this Court, and this is part of our brief, we have used that same argument, Mr. Justice Brennan in our brief.

Suppose the prayer used in the Herricks School District were paraphrased to meet the exact wording of the prayer of this Court.”

God bless the United States and the Herricks School District”.

Does this make it a religion?

But now we get there onto the word “semantic”.

Whether or not, the recognition of a Supreme Being on a public occasion amounts to a religion to an establishment of religion.

We have seen in the decided cases, we’ve heard comment here this morning that whenever a group of men get together, it seems to be proper to recognize the source of our blessings and our freedom.

Even in our own Herricks School District when we opened up our new high school.

We had several faiths represented on the platform who asked God’s blessing on the use of these schools.

Is this a sponsorship by the Herricks School District of a religion or an establishment of religion or is this not once again recognizing that there is a Supreme Being on which we rely?

We have had our presidents — presidents one after another so recognize.

President Kennedy in his January message concluded with words asking for God’s blessing on the United States of America.

This is something which comes from within us, but which is engrained in us from the time we are children, from the time we start to learn that what rights we have — have emanated from God, a God, a Supreme Being.

We are of varying faiths.

We have, I presume, varying faiths on this Supreme Court, and yet you find a common denominator in the prayer with which the Court starts.

We note that at the conclusion of the administration of the oath, the clerk here says, “So help me God”.

And my friends seriously argue, “This is a religion or an — an establishment of religion?”

We say no.

Earl Warren:

Mr. Neidlinger or Mr. —

Bertram B. Daiker:

Daiker.

Earl Warren:

— Daiker, I wonder if it will — if there would be any difference in your mind if instead of our marshal saying, “God bless this Honorable Court”?

If we were to require every litigant and every lawyer who comes into this Court before he receives any recognition from this Court to deliver the prayer that your children in the schools have delivered.

Bertram B. Daiker:

I’d like to answer that Mr. Chief Justice.

Earl Warren:

I just wonder.

Bertram B. Daiker:

I think now, we come very close to our Torcaso case, where we are now requiring and I consider admission, certainly to the bar of the United States Supreme Court in the nature of a public office.

We are now seeking a religious test for public office which this Court, in Torcaso said certainly was unconstitutional brought by specific provision.

I think you are now approaching the word compulsion, and that has been used many times this morning by my adversary in his argument.

He talked about the compulsory prayer in the Herricks School District and stated that until the time that this came before a special term, this was compulsory.

Now, this didn’t tell the whole story because from the moment the prayer was instituted, there was no compulsion —

Hugo L. Black:

Do you not have —

Bertram B. Daiker:

— upon any — I beg your pardon, sir?

Hugo L. Black:

Do you not have compulsory education?

Bertram B. Daiker:

You have compulsory — compulsory education but we’re now —

Hugo L. Black:

You have compulsory attendance?

Bertram B. Daiker:

Yes, sir.

We have compulsion on both.

But we’re now talking about the compulsion that the Chief Justice was referring to of a litigant or a member of the bar appearing in this Court and being required in effect to profess a belief in God as a condition to appearing here.

And this is the compulsion I am now seeking to address my remarks to.

It appears in the affidavit of William J. Vitale on, if you have that though, page 27.

Neither the Board of Education — I beg your pardon.

Page 27, folio 79, on the contrary, the principals and teachers in the School District have been directed and are following the directions that under no circumstances shall a pupil in anyway be made or encouraged to join in the prayer and no teacher has instructed the pupils how if they are to hold their hands or otherwise conduct themselves during the saying of the prayer.

I would emphasize that in view of the remark that this was compulsory after the time that we went to the special attorney court in Nassau County.

This was an affidavit reciting the facts as they existed from the — July 8, 1958, when the resolution of the Board of Education not directed to children but in effect spreading upon the minutes what the policy of the Board of Education was to be.

And that’s as far as it went, there was no direction to the children and the parents knew or most of the parents certainly knew if there were any question about it that through their principal, they would find the principal of each school that the principals had been directed that no child was to be required to join in this prayer if he felt it was against his religion or his parent’s wishes.

Earl Warren:

If it was compelled — required of all student, would it be unconstitutional?

Bertram B. Daiker:

I think the compulsion would make the unconstitutional aspect of it similar to West Virginia against Barnette, where there, we have the pledge of — Pledge of Allegiance, claim to be violative of the individual child’s religious beliefs.

Here, we find unconstitutionality created by the compulsion.

And this is what we think would happen here if there were compulsion.

There has been no such compulsion.

Earl Warren:

If there was compulsion or you concede that it would be unconstitutional.

Bertram B. Daiker:

Yes, sir.

We feel then that this would be a captive child as was the case in West Virginia against Barnette, a captive child required to recite the Declaration of Independence against that child’s own religious beliefs.

We recognize this under the State Education Board, if the Court please, in connection with provisions for the teaching of hygiene.

There are certain religions which do not accept the teaching of highs — hygiene in public schools.Our law specifically makes an exception for that.

And I think that the members of the Board of Education were guided by thinking of that sort that this should not be compulsory.

We have set forth at the beginning of our brief further regulations which were adopted as a result of special term suggestion where there was an elaboration and a commitment to writing that there was to be no such compulsion.

And that any child who requested could be excused.

Felix Frankfurter:

May I —

Bertram B. Daiker:

But —

Felix Frankfurter:

— may I —

Bertram B. Daiker:

Yes, sir.

Felix Frankfurter:

— interrupt to ask whether your answer to Chief Justice that if there were compulsion, you would find this offensive in the Constitution?

Bertram B. Daiker:

Yes, sir.

Felix Frankfurter:

Am I right to infer that that implies that the unobjectionability of the contents of the required prayer doesn’t settle the matter?

To your fact, that — that the prayer, nearly expressive what you argue, is the common presupposition of our national life doesn’t say that — say that’s constitutionality if added thereto is a compulsion to express that common faith of the nation that you argue, is that right?

Bertram B. Daiker:

I would so agree Mr. Justice Frankfurter.

Felix Frankfurter:

So we have to go beyond merely whether the content —

Bertram B. Daiker:

Correctly, sir.

Felix Frankfurter:

— offend anything.

Bertram B. Daiker:

Because, here again, we must be guided by this Court’s own decision in the Barnette case.

The flag salute as such is not unconstitutional.

The prayer here as such is not unconstitutional but if it is administered with compulsion, then we have an unconstitutional practice which the courts will strike down.

But we suggest to this Court, not by borrowing it or abolishing it any more than we abolish the flag salute after Barnette, but merely permitting those who do not find an accommodation between thi — this and their own religious beliefs to remain silent or be excused.

Felix Frankfurter:

Now, I — what I ask you — what I asked your brother Butler, namely, in order to object what you say would be beyond the call of the State to impose, namely to compel participations in such a prayer, the parent wouldn’t have to say, “I object to what prayer can obtain but I merely object to having my child being subjected to it even though I believe in that prayer”, is that right?

Bertram B. Daiker:

He would —

Felix Frankfurter:

Or would you — would you have to have a parent who — who also find offensive at the bad words —

Bertram B. Daiker:

Yes.

Felix Frankfurter:

— who doesn’t believe in the content of the prayer.

Could any parent say, “I don’t want my child forcibly be required to say that prayer, although I think it’s an admirable prayer and it expresses my faith”?

Bertram B. Daiker:

Any parent could so state, sir.

Felix Frankfurter:

Alright.

Bertram B. Daiker:

They could state that without stating their reasons why.

Felix Frankfurter:

Alright.

Bertram B. Daiker:

They need merely ask, “May my child be excused?”

or the child himself or herself may so ask.

Felix Frankfurter:

So from your point of view — from your point of view, the case merely gets down to your point of view to the narrow question or at least delimited question whether the circumstances under which this prayer was administered if you can administer a prayer or would be cited by the teacher —

Bertram B. Daiker:

Yes, sir.

Felix Frankfurter:

— for unison — for — for the congregation for the class will be joined whether those circumstances differentiated from a frank requirement that they cited?

Bertram B. Daiker:

A frank re —

Felix Frankfurter:

A frank compulsion.

Bertram B. Daiker:

Compulsion?

Felix Frankfurter:

That’s what the case gets down to prove.

Bertram B. Daiker:

Right, sir.

Felix Frankfurter:

Alright.

Bertram B. Daiker:

The question revolves itself particularly around that question of compulsion.

Hugo L. Black:

May I ask you one question?

Bertram B. Daiker:

Mr. Justice Black?

Hugo L. Black:

When you began to discuss the — you referred to Justice Frankfurter’s reference to this prayer as an avowal of faith, I gathered then that you agreed to the (Inaudible) and I have assumed from what you are saying now that you do agree to it, is that right?

Bertram B. Daiker:

Agreed to the words “avowal of faith”?

Hugo L. Black:

That the prayer is itself is an avowal of faith.

Bertram B. Daiker:

I would say yes, sir.

Earl Warren:

Religious faith?

Bertram B. Daiker:

Well, now, we get down to semantics again, if it please the Court.

Earl Warren:

No.

(Voice Overlap) no that’s not semantics.

I think that we talk about faith as a religious or faith in our country or —

Bertram B. Daiker:

Well, the reason sir that I questioned the — I questioned what — drew back on the word “religious faith” is because I also said that there are people who believe in a Supreme Being without it being a particular religion that that person may believe in.

But such a person could make an avowal of faith in God without being a religious person in the colony —

Hugo L. Black:

You mean without belonging to a sect?

Bertram B. Daiker:

— except determined.

Hugo L. Black:

You mean without belonging to a sect?

Bertram B. Daiker:

Yes, sir.

Earl Warren:

Yes, well that’s — that’s different from religion, isn’t it?

Whether a person belongs to a sect?

Bertram B. Daiker:

Yes, we — we — we —

Earl Warren:

I suppose a —

Bertram B. Daiker:

— we think in terms of a sect as a —

Earl Warren:

I suppose a person who belongs to no — no churches of any kind offers a prayer to — to God, it’s a — it’s a religious devotion, isn’t it?

Bertram B. Daiker:

Yes.

Earl Warren:

For religious practice?

Bertram B. Daiker:

Yes, I would agree.

Earl Warren:

And in that sense, wouldn’t this be the said prayer?

Bertram B. Daiker:

In that sense I would agree with your statement of — as to this being religious faith.

Earl Warren:

Yes.

Now, may I ask you this question Mr. Daiker, will you tell us please in your words why or — or what the reasons were for having this prayer as — as shown by the — for the Regents or for by the school board or both?

Bertram B. Daiker:

Well, there is no doubt that this came to the attention of the Board of Education as a result of the recommendation of the Board of Regents.

Earl Warren:

Yes.

Bertram B. Daiker:

In 1951 and reaffirmed in 1955.

Earl Warren:

Yes.

Bertram B. Daiker:

That statement, like any document, if words are taken or a sentence is taken from here or there, can prove almost any point you wish.

Earl Warren:

I suppose you —

Bertram B. Daiker:

But basically —

Earl Warren:

(Voice Overlap) what it proves to you —

Bertram B. Daiker:

— basically, this prove to me that the Board of Regents, and I’m using some of their language, was interested in promoting the belief in tradition, the belief and the moral and spiritual values which make up part of our national tradition.

Now, this is a lot of verbiage, I agree, and if you gave this to a youngster, it wouldn’t mean very much.

But I think to a Board of Education, when this document is presented to them from the Board of Regents, they read this but they make their own decision.

This was not compulsory from the Board of Regents to the Board of Education.

Earl Warren:

But you shy away from the — the word “religion”.

Was it — was it the purpose of the Board to promote religion?

Bertram B. Daiker:

I don’t believe so.

Bertram B. Daiker:

I think the purpose of the bo — of the —

Earl Warren:

Why do you say ethical — ethical purposes and things of that kind would shy away from religion when — when the entire wording of the — of the prayer is in — in the words of religion?

Bertram B. Daiker:

Well, I don’t — I don’t want to have the Court understand my words as saying that the Board of Education was trying to teach religion in the schools.

Earl Warren:

Well, I know you want to keep away from that, but I’m —

Bertram B. Daiker:

Well —

Earl Warren:

— but I’m — what I’m trying to find out is how you analyze the language of the Board of Regents, the action of the Board of Regents, the action of your school board and the — and the delivering of this prayer every morning without — without getting a question of religion.

Bertram B. Daiker:

I don’t think you can stay away from religion.

Earl Warren:

Alright.

Bertram B. Daiker:

So long as you have a prayer, there is a religious facet to it.

Earl Warren:

Well, was that the purpose —

Bertram B. Daiker:

Just —

Earl Warren:

— of the Board of Regents in — in promoting that in the — in the schools?

Bertram B. Daiker:

I don’t believe their purpose was to promote religion as such but they did and they so stated, they were seeking to promote a continuation of what they felt to be the traditions of this country in which God is inevitably mentioned and in which inevitably every document and every pronouncement recognizes that we have, we got from God.

And I think this is what they were trying to enhance and forced it.

They had no more desire to teach religion in schools.

We give credit to the Board of Regents for being cognizant whit their educational department, legal division of all of the decisions of this Court and certainly they would not suggest to Boards of Education, individual Boards of Education, a procedure which they felt was flying directly in the face of cases which say religion shall not be taught in schools, as we had in McCollum.

Earl Warren:

But I thought — but I thought that was exactly what the lower court found that they did in some respect and that you concede here now because originally, didn’t they make the — make it compulsory?

Bertram B. Daiker:

No, sir.

This has never been com — this is what I tried to correct to the opening of my statement and may I reemphasize this —

Earl Warren:

Yes.

Bertram B. Daiker:

Mr. Chief Justice.

Earl Warren:

So, it was a — it was the school board that made it compulsory?

Bertram B. Daiker:

No, sir.

The school board did not make it compulsory.

The school boards said, “We hereby, in effect, we hereby adapted –” if you would look for that resolution, “We hereby adapt as a practice to be followed in the schools each day, joined with the Pledge to Flag, the saying of the Regents’ prayer”.

But the — there, the resolution of the school board ended.

There was no compulsion at — it did not go on and say, “And in addition, every child who attends schools in the Herricks School District shall be required to join in this prayer”.

But on the contrary, as I have referred to the affidavit of the president of the Board at the time the suit was instituted, this was directly contrary to what was in fact the case.

The — the principals were directed that no child was to be required to join in this prayer.

Earl Warren:

Was that the original resolution?

Bertram B. Daiker:

It was not in the resolution, sir.

Earl Warren:

It’s wasn’t — that wasn’t done until after the court had determined it —

Bertram B. Daiker:

That is correct.

Earl Warren:

— would be unconstitutional —

Bertram B. Daiker:

But the origi —

Earl Warren:

— to be required, was it?

Bertram B. Daiker:

— the original resolution had no compulsion in it.

Earl Warren:

No.

Bertram B. Daiker:

It said this is our policy.

Earl Warren:

— (Voice Overlap) — have anything excusing any child, did it?

Bertram B. Daiker:

But that was the practice.

It was the practice as much —

Earl Warren:

It wasn’t any practice before — before it started, was it?

Bertram B. Daiker:

Well, at that point, yes, there was a practice at least to establish by one child who had asked to be excused from joining in the prayer and that request had been honored.

Earl Warren:

What I — what I meant was this.

In the original — in the original resolution, they provided that this — this prayer should be administered each morning.

Bertram B. Daiker:

Yes, sir.

Earl Warren:

They didn’t at that time provide for any excuses for children who — whose parents did not want them to do.

And it was not until your — to your Supreme Court.

The Appellant Division said that it would be unconstitutional to compel them to do it, that they’ve been passed another resolution saying that of course, they would be excused.

Am I correct in that sequence?

Bertram B. Daiker:

The sequence is correct, sir, but your characterization of the first resolution is incorrect —

Earl Warren:

Yes.

Bertram B. Daiker:

— if I may suggest that.

Earl Warren:

Yes, would you — would you —

Bertram B. Daiker:

May I — may I just read the first resolution?

Earl Warren:

Would you please, yes, I’m —

Bertram B. Daiker:

This is how it moved, seconded by Mr. Saunders.

This is on page 40 of the record.

Earl Warren:

On page 40.

Bertram B. Daiker:

Yes, at folio 119.

Earl Warren:

Yes.

Bertram B. Daiker:

This is how it moved, seconded by Mr. Saunders, “That the Regents prayer be said daily in our schools”.

Motion carried by a majority vote Mr. Freed (Inaudible).

The Board of direct — the Board of Education gave direction to the district principal that this be instituted as a daily procedure to follow the salute of the flag.

Earl Warren:

Yes.

Bertram B. Daiker:

Now, this is mandatory, certainly, on the principal as an employee, just as I assumed that someone, somewhere along the line here in this Court directed the marshal or the clerk to begin the work of this Court with a prayer.

That is the direction which is followed from day to day.

Earl Warren:

Calling on —

Bertram B. Daiker:

But —

Earl Warren:

— calling on everybody in the courtroom to —

Bertram B. Daiker:

To at least listen.

Now, if I may invite Your Honors’ attention on this same question to page 27.

We come to Mr. Vitale’s affidavit that I referred to and quoted before in which the — he recites that the principals and the teachers were directed not to require any child to join in this prayer.

There are many resolutions which are adopted by a School District which do not carry out all of the distinct regulations by which the policy will be carried out.

The district principal in Court here today has carried out the directions of the Board of Education many times merely by the statement of the policy of the Board.

But you are correct sir in saying that until special term issued its order, we did not further put this in the record —

Earl Warren:

Yes.

Bertram B. Daiker:

— of the district as indeed we have many times not put all of the re — exact regulations by which a policy will be carried out.

This being —

Earl Warren:

That’s all — that’s all I intended to imply.

Bertram B. Daiker:

Yes.

Earl Warren:

Yes.

Hugo L. Black:

I don’t want to delay you but you said not to join — they were told they need not join in the prayer?

What does that mean?

They didn’t have to rise when the prayer was spoken?

Bertram B. Daiker:

No, sir.

No — no, the children —

Earl Warren:

What does it mean?

I was just curious.

Bertram B. Daiker:

Yes.

Those children who do not wish to join in the prayer or whose parents do not wish them to join in the payer — prayer, may remin — remain seated, they may remain silent.

Hugo L. Black:

They were — may remain seated and silent —

Bertram B. Daiker:

Yes.

Hugo L. Black:

— while all the others rise and salute the flag —

Bertram B. Daiker:

If that is their wish.

Hugo L. Black:

— salute the flag and listen to the prayer?

Bertram B. Daiker:

Yes, sir.

Now, there are many times, I’m sure in classrooms as —

Hugo L. Black:

Is that the extent of the excuse that supported them?

Bertram B. Daiker:

No, sir.

They may be excused entirely from being in the room when the prayer is said if they so wish.

And we have had no such request to this date.

Earl Warren:

Where is that resolution that points that out, is it — is that in here?

Bertram B. Daiker:

As to the practice from the time it was adopted, we relied on Mr. Vitale’s affidavit at page 27.

As to what was done as a result of special term is in my brief at — it’s on my brief here.

I couldn’t find it.

On page 2 of my brief, the — the respondent’s brief, we have the implementing resolutions which were adopted in September of 1959 to carry out Judge Myer’s suggestions.

Hugo L. Black:

Page — page what?

Bertram B. Daiker:

Page 2 of my brief, sir.

And that is where it is indicated in furtherance of Judge Myers’ opinion, teachers are not to comment, they are not to cause any particular posture to be suggested, no particular dress to be worn but simply a question of joining if they so wish.

Hugo L. Black:

As I understand the petitioner, he had a contest that you — I thought he said that to be excused, leave the rooms, I have been asked to be excused in the rooms or didn’t know where they’d go.

Bertram B. Daiker:

Well —

Hugo L. Black:

(Inaudible) that contest, isn’t it?

Bertram B. Daiker:

No, sir.

Now —

Felix Frankfurter:

Do I fairly summarize — do I fairly understand the line of your position in the course of the colloquy we’ve had in a few minutes, that you — you say it isn’t teaching religion to take for granted that which underlies our whole national life as indicated in Zorach, is that your point?

Bertram B. Daiker:

That is my position, sir.

Felix Frankfurter:

It’s the charac — you don’t promote something that you’d take for granted.

Bertram B. Daiker:

No, sir.

Bertram B. Daiker:

It’s a —

Felix Frankfurter:

You don’t promote the air which you breathe.

Bertram B. Daiker:

That’s correct, sir.

This is an affirmation of all that we have learned since we were youngsters.

Now, I have —

Earl Warren:

Is it a religious practice?

Bertram B. Daiker:

Is it a religious practice?

No more so than the saying of any prayer on a publication — on a public occasion is a religious practice.

Any group of men who gather together for dinner commence with a prayer.

This to that extent is a religious practice.

Earl Warren:

Yes.

Well, Mr. Daiker I — as I understand Mr. Butler, neither he nor his — his clients object to any such prayers, any place except —

Bertram B. Daiker:

Except —

Earl Warren:

— in the public schools where the children are compelled to come and where they will be indoctrinated with — with the — with the prayer as a matter of — of training and where they will be held up to contempt or ridicule if they or their parents should want them to be excused and pointed out as being different from the rest of the children?

Bertram B. Daiker:

Now, I lost your question when I got to the end of that.

Earl Warren:

We got pretty involved I guess.

Bertram B. Daiker:

It (Voice Overlap) —

Earl Warren:

Taking as far as you — so far as you remember.

Bertram B. Daiker:

When we — we get back to the word of religious practice, we refer the Court for instance to the language of our own Court of Appeals which along the lines that Mr. Justice Frankfurter said in stating what he understood my position to be.

Our Court of Appeals says whenever people gather together in a group and utter a prayer, a recognition of Almighty as has been consistently done since the founding of the country hundreds of years ago.

We don’t find constitutional objections.

How then can we say that prayer is alright on any public occasion in a state paid for a building with state employees except in the school?

It can only rest if we get down to whether or not this is teaching religion as distinct from acknowledging publicly the fact that we have a God.

Now, I’ve — in closing —

Felix Frankfurter:

Mr. Daiker.

May I — before you sit down, in interest —

Bertram B. Daiker:

Well, I have co-counsel here and I’m approaching out of statute.

Felix Frankfurter:

— (Voice Overlap) on Mr. Chandler’s time.

We have here a prayer of public schools for children between the ages of what and what, kindergarten and —

Bertram B. Daiker:

From kindergarten through 18.

Felix Frankfurter:

18?

Bertram B. Daiker:

Yes sir, high school.

Felix Frankfurter:

Now, may I recall to you the will of Stephen Girard, who was a devout Catholic and founded Girard College for the orphans of Philadelphia and in his will, there was a provision set forth at length prohibiting that no enthusiastic of any kind of faith could set forth on the ground of Girard College for any considerable grounds.

And he gave the reasons for it.

The children there, the young people there or aptly boys up to the age of 18 because he thought up to — during that period of youth under holds that prayer except to the people, faith, religious devotions, are not critically self-determined.

And he gave reasons why.

Therefore, he didn’t want any religious influence he brought the best upon the attendants, the students of Girard College.

And you will remember that that will was contested on the ground that such a provision of will is against public policy for the reasons that you — in your own language indicated that you’re essentially religious people and that litigation came to this Court more than once.

Now, what I want to ask you in the light of that rather famous historic episode, what do you think a line of that sort very important?

Remember that Girard is a Catholic communicating (Inaudible) communicating for the Catholic Church, buried in Catholic burial ground et cetera, what do you think the line — there is a difference between what you do with reference to children or boys up to 18 certainly receiving Girard’s (Inaudible) into the children?

Bertram B. Daiker:

Yes, sir.

Felix Frankfurter:

Whether there is a — a constitutional difference may be drawn with reference to the particular case we have before us, namely, the requirement of this kind of a prayer subject to — to taking steps to have children, a child taking out and not consenting or drawing the line up to the age of 18, what do you say to that?

Bertram B. Daiker:

I think that Mr. Girard was certainly entitled to his opinion.

I think that the Board of Education —

Felix Frankfurter:

But unfortunately — if you’ll forgive me —

Bertram B. Daiker:

Yes, sir.

Felix Frankfurter:

— what really is his opinion because the — the enforceability by the law of his opinion because that will was contested as being against public policy.

And he — he said that nobody can go there without taking an oath, you’ll never marry again, you’ll never marry, that was not, I assume, that would have been deemed the provision against public policy.

Bertram B. Daiker:

Well, Mr. Justice Frankfurter, if I correctly interpolate your summary of what he was thinking.

He says that up until a child becomes 18, he really doesn’t know what he wants to do about religion or about a belief in God.

Felix Frankfurter:

He did it affirmatively.

He said what he thought to — when it came of age — at 18 then the child could make his own decision.

A human being can make his own decisions.

Bertram B. Daiker:

Well, I — I — I must only come back to saying, he’s certainly is entitled to his opinion that until 18, a child is incapable of recognizing God.

But the founders and the Government of this country don’t so believe because we used the words under God and now pledge to the flag for six-year-olds today when they get to their social studies and then history, they’re going to study the Declaration of Independence.

They will in the case of public assemblies join and sing, “Come now Almighty King”.

The child certainly can recognize that and if Mr. Girard’s argument would have prevailed then we would have to literally rewrite history as I suggested before.

I, of course, joined in the conclusion in my brief that we urge this Court to affirm the lower court brought in but Mr. Chandler has an intervening thought to express.

I don’t want to be lost on that last thought.

Earl Warren:

Mr. Chandler.

Porter R. Chandler:

May it please the Court.

I represent a group of intervenor parents who came into the case very shortly after it started by intervention, with the four rights of parties under the New York Civil Practice Act as persons especially and beneficially interested in upholding the determination here assailed.

My clients, we have heard from my friend about the views of some religious faiths, my clients include three Jewish parents, seven protestant parents of five separate denominations, one person of no religious affiliation or whatever and five Catholics.

When this case started, they had 37 children in the public schools.

Rather the reverse of the diremos situation, on the last count, my clients now have 41 children in the public schools, so there is no question of mootness here.

The question by the way was asked to my opponent or asked to Mr. Daiker as to whether there was any question about the standing of these petitioners.

We do not question the fact that any of them or that they are all taxpayers and they are all parents.

But the question of standing in the complete absence of pocketbook injury and the question withstanding in the absence of what we understood to be any objection to the prayer maybe something else again but that these petitioners, like my clients, are all taxpayers and parents, it’s undisputed.

Why are my clients here at all?

They are here in the name of free exercise religion if you want to put it that way.

They are here because they feel very strongly that it is a deprivation of their children’s right to a share in our national heritage and that it is a compulsory rewriting of our history in the fashion of George Orwell’s 1984 to do what these petitioners are now seeking to do, namely, to eliminate all reference to God from the whole fabric of our public life and of our public educational system.

Hugo L. Black:

Is that a — is that a correct statement from our public right?

Porter R. Chandler:

Our public educational system which is an —

Hugo L. Black:

You mean —

Porter R. Chandler:

— important part of out public.

Hugo L. Black:

— you mean all tax supported institutions?

Porter R. Chandler:

I said tax supported — tax supported institutions.

Mr. Butler, at the start of his argument, used one phrase which I wish to criticize.

He spoke about this being an attempt by the State to introduce religious practices into public schools.

It is nothing of the sort.

The attack here is from the other direction.

It is an attempt to drive out of the public education system practices which are long established, venerated and practiced without objection throughout the country from the very beginning.

The practice of prayer in the public schools of New York, to be specific, goes back to 1837.

According to figures cited in our brief, the practice of either a prayer of some sort or another or a Bible reading or hymn singing or any two or three of them, is prevalent throughout the public schools of at least half the states of the union.

And as Mr. Daiker observed, 19 Attorneys General have come in here with an amicus brief pointing out the widely precautions which would be affected if my friend’s position were to be adopted as the law.

Felix Frankfurter:

Mr. Chandler —

Porter R. Chandler:

Yes, sir.

Felix Frankfurter:

— is it there in your brief a reference to the history of prayers in New York public schools as I — I’ve already indicated I’m a product of them, and they still have —

Porter R. Chandler:

Yes, Your Honor.

There is — there — there is —

Felix Frankfurter:

We still have flag salute, I remembered vividly but — but I think I’m quite clear that in my days, in my public schools, (Inaudible) prayer, I’m not saying that that isn’t elsewhere but I’m just —

Porter R. Chandler:

There is some reference to it.

I was speaking to schools of New York State, New York City.

I know — here’s what — here’s what is done in New York City right now, Your Honor.

As an opening exercise, a religious exercise, if you will, everyday in every public school in New York City, they sing the last stanza of America, which is a prayer and is intended and sung as such.

In other sections of the state, there are different —

(Inaudible)

Porter R. Chandler:

The last stanza, “Our fathers” God to Thee, author of liberty, to Thee we sing.

Long may our land be bright, with freedom’s holy light.

Protect us by Thy might, great God, our King”.

That is as religious in exercise and as much of a prayer as anything here involved and that is the practice in all the public schools in New York City.

The basic question here is whether these petitioners have the right to impose their views on everyone else in the absence of any pocketbook injury to them, in the absence of any compulsion.

I want to answer further that Mr. Daiker did and very squarely, the Chief Justice’s question.

There has been any question in this case of any compulsion from the start.

The first resolution recited that the prayer should be given in the schools contemporaneous instructions, and the record is perfectly clear, contemporaneous instructions from the start to all teachers were that if any child objected he should be — his objection should be respected and his objection can take any one of several forms.

He can ask to be excused from the room, which nobody has.

He can remain silent in the room, seated.

He can stand up and not say anything so that there is no question particularly of he’s being marked out as different and that —

Earl Warren:

Where is that —

Porter R. Chandler:

— practice has been —

Earl Warren:

— where is that in the record?

Porter R. Chandler:

— so from the start.

Earl Warren:

Where is that in the record?

Porter R. Chandler:

In Mr. Vitale’s — in Mr. Vitale’s affidavit at page 27.

Earl Warren:

Is that (Voice Overlap) —

Porter R. Chandler:

Supplemented Mr. Vitale’s —

Earl Warren:

But there was no —

Porter R. Chandler:

— supplement —

Earl Warren:

There’s no resolution of the Board during (Voice Overlap) —

Porter R. Chandler:

There was no resolution of the Board but that was the practice.

Porter R. Chandler:

And there is no question that any — there is no claim, no claim has ever been made that any child in this district was coerced or threatened or disciplined or told, he would be disciplined from the very start.

The Board later adopted specific resolutions in response to the special term’s request but they stated at the time that what they were doing was merely confirmatory of their existing practice.

So the question of compulsion because I think Mr. Butler stated in his argument, is out of this case.

Felix Frankfurter:

The classes are about between 30 and 40 is the size time of the class?

Porter R. Chandler:

That I don’t know your — how — how the size —

William O. Douglas:

Approximately.

Porter R. Chandler:

That’s approximately right.

Yes, Your Honor.

William O. Douglas:

This is at the opening of the class?

Porter R. Chandler:

This is at the opening of the class each day along with the salute to the flag.

William O. Douglas:

(Inaudible) they might come in after the opening, is that right?

Porter R. Chandler:

I think he could, yes.

Yes, he could be excused that way, too.

Let me come to the question that Mr. Justice Whittaker raised about the flag salute.

The flag salute, in 1954 had the words “under God” added to it.

And the question was asked whether that had a religious connotation or it was a religious exercise.

And I say unequivocally, yes.

And I say it on the authority of the House report which recommended those words.

And Pledge of Allegiance is in almost every public school throughout the country.

And this is why the words “under God” are recited by school children in that pledge.

This is what the House Committee said, “Our American Government is founded on the concept of the individuality and the dignity of the human being.

Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp.

The inclusion of God in our pledge would further acknowledge the dependence of our people and our Government up with the moral directions of the Creator”.

And the question presented in this case is whether this group of petitioners have the right to outlaw from our whole public educational process anything which would suggest an acknowledgement of dependence of our people and our Government and our school children upon the moral directions of the Creator.

Potter Stewart:

In this school, why has the — has the administration of these — of these separate schools or the school board made provision for children who don’t want to recite the Pledge of Allegiance (Voice Overlap) —

Porter R. Chandler:

I am told that — that the question I’m — I think, subject to correction, I’m told that the question is never a reason.

The Jehovah’s Witnesses haven’t pulled down to that part of Long Island yet but they would be.

The Board of Regents has made it quite plain in their brief here that as a matter of public policy in the State of New York, the principals of the Barnette case are and always have been applied and that any child of Jehovah’s Witness who —

Potter Stewart:

Or any other child —

Porter R. Chandler:

Any other child.

Potter Stewart:

— for any reason.

Porter R. Chandler:

And there is a case — there is a case now pending in the Court of Appeals of New York where the very same arguments that you’ve heard at this bar today on First Amendment grounds are being used to attack those words “under God” in the Pledge of Allegiance to the Flag so that perhaps next term or the term after, you will have that one before you.

But that there is — that — that those words have a religious concept and that they were put in for a religious reason, it seems to me quite apparent from the statement I just read.

Earl Warren:

We’ll recess now.