No Ground for Retreat

...All but one justice accepted the practice as constitutional—on reasoning some of them soon regretted...

...Justice Douglas decidedly had a problem...

...And in 1952 the Court upheld the religious education program in New York schools...

...But in holding that the recitation of the New York Regents' Prayer was unconstitutional the Court left no question which way it was heading, and it can be expected to continue separating church and state and protecting the beliefs of minorities...

...But the possibility of a reversal is usually foreshadowed by a close vote or by the majority's language...

...But even in approving New York's religious program outside the schools the Court remained clear on its position toward religion inside the schools: "Government may not use secular institutions to force one or some religion on any person...

...Ray Warner, a new contributor, is on the staff of the New York Times...

...Constitutional psychologists of 1962 were given new fields to explore last week when Justice Douglas referred to the bus case in his concurring opinion on the Regents' Prayer...

...Five important religious practice decisions were handed down before the Regents case...

...The opinion, by Justice Felix Frankfurter, cited the now-familiar argument that there were no constitutional absolutes and that the school board, not the Court, was in the better position to decide between the conflicting claims of religion and national unity...

...Both had been upheld because the lower courts: (1) adjudged Biblereading and prayer recitation to be free of compulsion on the ground that the students did not have to listen, and (2) ruled that the Bible and the Lord's Prayer were nonsectarian and therefore not unconstitutional...

...The Court then indicated that it was prepared to go further than in its Regents decision...

...Three justices, Black and Douglas included, later decided they had erred...

...In 1948, the Court, with Justice Black writing the opinion and Justice Stanley F. Reed registering the only dissent, invalidated the religious education program in Illinois schools...

...In the first flag salute case, for example, the majority readily pointed out the merits of both arguments...

...A Civil War amendment, the Fourteenth, provided that no state could "deprive any person of life, liberty or property without due process of law...

...Further confusion over the church-state controversy developed between 1948 and 1952...

...But such possibilities seem remote in the extreme...

...The questions, then, were: Would the Supreme Court agree that compulsion was not involved...

...It not only was late in accepting state religious practices as constitutional problems, but once it accepted this responsibility the Court's own confusion resulted in its doing almost everything possible to confuse the public...

...For this the Court must accept some if not most of the responsibility...

...It was not until 1925 that the Court began expanding the interpretation of "liberty" to include liberty of speech, press, worship, assembly and petition...

...Justice Douglas wrote that his problem today "would be uncomplicated" except for the New Jersey case, which "seems in retrospect to be out of line with the First Amendment...

...But the Court was just beginning to accept its new role...

...These provisions of the First Amendment did not, of course, apply to the legislatures of the states...

...The flag salute cases came first...

...But its general direction had become clear with the reversal: It would no longer defer to local authorities on such issues...

...The Tennessee court compared the decisions in the Illinois and New Jersey cases and concluded that the Supreme Court's positions were "irreconcilable...

...Nothing short of a constitutional amendment could now divert the Supreme Court from an objective that became discernible in a flag salute case in 1943, and became obvious with the school desegregation case of 1954...

...Probably no judicial decision covers all eventualities...

...The Court can also modify a position or approve a modification of something it has previously rejected, as in the case of religious instruction...

...Prior to the Regents case, the Supreme Court had not ruled on Bible reading or prayer recitation, although state court decisions on these issues were almost endless...

...Other possibilities offer themselves...

...A 1947 decision involving a New Jersey law generated more heat...

...Laymen looking for a guidepost might well have wondered if public opinion had not been more important than constitutional considerations in influencing the ultimate decision...

...True, the Court can always reverse itself...

...Moreover, at least two of its present members, Hugo L. Black and William O. Douglas, must share much of the blame despite their leadership in the gains that have thus far been made in the protection of minorities...

...And once the Court ignored all possible criticism or implications and unanimously ordered the end of school segregation, there could be no doubt that its constitutional sympathies would lie with the minority...

...A Tennessee court, considering a challenge to a Biblereading statute, looked to the United States Court for guidance...

...The Court ruled 5-4 that it was not unconstitutional for a school board to reimburse parents for bus transportation costs incurred in sending their children to Catholic parochial schools...

...Public opposition was prompt and strong...

...Justice Douglas, however, was supported by five others in his majority opinion...

...When the Witnesses presented a West Virginia case in 1943, the Court overruled by 6-3 its 1940 decision and invalidated the flag salute in both states...

...The First Amendment of the Constitution forbids Congress to make any law respecting an establishment of religion (the establishment clause), or any law prohibiting the free exercise of religion (the free exercise clause...

...This was first interpreted to mean that the states could not interfere with economic interests...

...The Court has allowed no real ground for retreat...

...The resulting conflicting opinions may well be summarized by Justice Robert H. Jackson's dissenting comment in the one concerning released time: "Today's judgment will be more interesting to students of psychology and of the judicial process than to students of constitutional law...

...Two children of Jehovah's Witnesses were expelled from a Minersville, Pennsylvania school for refusing to salute the national flag as part of daily school exercises...

...The Court's position has surprised and upset many people...

...Confusing to the public...

...The Regents decision, though, defines the Court's aims as clearly as it is judicially — and psychologically — possible to do...

...More than that...

...And would it distinguish, as some state courts had done, between religion and sectarian religion...

...it would, instead, decide itself between contending claims...

...For he, along with Justice Black, had been in the majority approving the New Jersey practice in 1947...

...His written opinion was so dependent upon extra-constitutional considerations that Justice Douglas concluded he was with the majority not because the New York practice was unconstitutional but because New York's prayer broke with the "tradition" of Jefferson and Madison...

...Justice Black's decision for the majority was clear on both points: "There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings is a religious activity...

...The decision, in 1940, was widely criticized...

...The Court's protection, though, was inconsistent from the beginning...

...Under the new doctrine, the Court considered that all rights protected by the First Amendment against the Federal government were protected by the Fourteenth Amendment against interference by the states...

...Italics mine...

...The Court had seemed confused when it reversed itself on the flag salute, diverged on the bus transportation issue and softened its stand on religious instruction...

...Neither the fact that the prayer may be denominationally neutral, nor the fact that its observance on the part of the student is voluntary can serve to free it from the limitations of the establishment clause...

...No such situation exists in the Regents case, and the vote was 6-1...

...For example, the Court could approve a teacher's voluntary reading of a prayer neither written nor sanctioned by any government body...

...Unfortunately for someone attempting to understand constitutional theory, Justice Douglas's concurrence in the Regents case was complicated by more than the New Jersey case...

...Justice Frankfurter said "there is all the difference in the world between letting the children out of school and letting some of them out of school into religious classes.' Justice Jackson concluded that "it takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion...

...They involved "released time" in New York, religious education in Illinois, payments to parents for bus transportation to schools, and flag salutes...

...Nevertheless, the Regents' Prayer decision should not have come as a surprise...

...In both instances, arrangements for the instruction were made through the school system, and instruction was conducted during school hours...

...It is neither sacrilegious nor antireligious," the justices agreed, "to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance...

...Three justices—Black, Frankfurter and Jackson—dissented from the New York decision...

...R. W.) Thus, the American Civil Liberties Union and others who see the Court's action as far-reaching appear to be right in their contention that all prayers in schools will be barred...

...In Illinois, however, instruction was given in the classrooms, while in New York the students were released from classes to receive instruction away from school buildings...