A Dissenting Opinion

...This impression is certainly not consonant with the mood of either the founding fathers or of our long tradition of separation of church and state, which is based on neutrality and not animosity...

...This is the famed and salutary principle of the separation of church and state, announced in a day in which there were many religious establishments, including those of the original colonies...

...They wanted a religiously neutral state, not one hostile to religion...

...But the Court decision is not as important as it seems at the moment, because the religious substance of our culture will not be preserved by a Regents' Prayer...

...Religious opinion on the decision was sharply divided...

...And an important constitutional issue underlies these specific consequences: Has the Court not in fact assumed legislative function in the guise of interpreting the Constitution...

...Since we are operating under a written Constitution, rather than an unwritten one as in Britain, there is the danger that provisions conceived in the historical context of the past will become restrictive or meaningless in our present situation...

...The problem is the religious pluralism of the American community, plus the fact that this pluralism includes an increasing number of people without religious convictions or practices...

...Significantly, it was not meant to be applicable to the several states...

...It declares "Congress shall pass no laws respecting the establishment of religion or the suppression thereof...

...The states in a variegated and pluralistic national community may pass some laws which are deemed unwise...

...In this case the Court has cut through all the complicated adjustments by which a traditionally religious community with a large secular segment tries to adjust competing claims and interests...

...Only after the Civil War, as the eminent Harvard constitutional law professor, Mark Howe, recently reminded us, was the First Amendment made applicable to state administrative procedure...

...It might be criticized for being innocuous, but clearly not for being offensive to any religious group...

...The Court upheld their challenge, even though participation in the Prayer was not compulsory...

...It has established a rigid law for all sections of the nation...

...The Prayer is unexceptional in its freedom from sectarian bias...

...The religious champions of the separation of church and state, chiefly the Baptists, were not unanimous in their approval...

...It will only be preserved by the creative relation of religious piety to the individual and common problems of our daily life...

...Conceivably, Justice Felix Frankfurter, who was not involved in the decision, could have voted with the majority...

...But it is worth mentioning his controversial, yet salutary, doctrine of "Judicial Self-Restraint," which the Court might well have observed in this decision...

...This phenomenon must reveal that symbols, rather than facts, were involved— as they so frequently are in both religious and political controversies...

...The latter category, rather than any one of the traditional faiths, challenged the constitutionality of the Prayer...

...Actually, the Court decision was an instance of using a meat-ax for solving a delicate problem requiring a scalpel...

...The Court and the Prayer — Two Articles A Dissenting Opinion By Reinhold Niebuhr On the surface, the Supreme Court decision holding the so-called "Regents' Prayer" used in New York State schools to be in violation of the First Amendment to the Constitution, and the resulting furor in the press and among officials of church and state, would seem to be a tempest in a teapot...

...Religiously, the Regents' Prayer came to be a symbol of the religious life and tradition of the nation...

...The religious heritage of the nation will certainly not stand or fall by the presence or absence of the Regents' Prayer in the opening exercises of the New York school room...

...The Amendment expressed no hostility to religion, but neutrality between various versions of religion...

...The principles of liberty and equality embodied in our Bill of Rights are fortunately transcendent principles of justice, which must remain a guide to all legislation...

...It seemed, in fact, a model of accommodation to the pluralistic nature of our society...

...The Court decision symbolizes the perils of secularization of our culture to the religious devotees...

...The First Amendment, upon which the present decision is based, is simple enough...

...But they ought not to be invalidated by the Supreme Court unless they are clearly in violation of the Constitution...

...The most devastating criticism came from Cardinal Spellman, though his concern seemed in contradiction to the Catholic criticism of the public schools as "Godless...

...In terms of the resulting policy of the Court decision, the question arises whether it will not work in the direction of a secularization of the school system so consistent as to amount to the suppression of religion, and giving the impression of anti-religion in the Government...

...The result is a consistently secular education, which the founding fathers certainly did not intend...

...It could only have offended very sophisticated youngsters, who regard any kind of prayer as superstition...

...It merely acknowledges dependence on God and invokes divine blessing on the pupils, teacher, school and country...

...But when the Court interferes, not only with laws but with administrative procedures by which communities try to solve some problems of human relations, it makes law for the whole nation and interferes with the local laboratory experiments of the several communities...

...More specifically, it means that it should not invalidate a law merely because it believes the law to be unwise...

...Yet Justice Hugo L. Black's majority decision outlawing the Prayer has produced a storm of positive and negative responses...

...The doctrine means that the Court should not legislate under the cover of interpreting old law...