Part 21

As soon as Rundquist returned to his office, he put in a call to William J. Butler, a former staff counsel of the American Civil Liberties Union, who had specialized in corporation law since entering private practice. Butler, a tall, stocky Harvard graduate in his middle thirties, whose four grandparents had all migrated to the United States from Ireland, and two of whose uncles were priests, was married to the daughter of Arthur Garfield Hays. An ensign in the merchant marine during World War II, he was a sailing fan who missed no opportunity to be on or near open water.

Quickly, Rundquist explained that the Union had decided to support Roth. Was Butler interested in handling such a case? He was. “I consider this prayer ruling a dangerous threat to freedom of religion” he told Rundquist. “That is why I will take the case.” Ten minutes later, the lawyer was talking to Roth. He had only one request to make of the plastics manufacturer. He would like a group of plaintiffs who represented a religious cross-section of the community and which contained no agnostics or atheists. “I’ll do my best, Mr. Butler,” Roth promised.

As soon as he returned home that evening, Roth placed advertisements in the _Roslyn News_ and the _Williston Times_, asking for people who were interested in challenging the Regents’ Prayer to contact him. Within two weeks, he had assembled the names of fifty Protestants and Jews as well as one Catholic. But it wasn’t long before his list began to shrink “We found,” Roth later revealed, “that there was going to be a substantial amount of pressure and even vilification and hostility. One couple were 100 per cent with us until they spoke to their minister. Then they came to me and said, ‘We’re still with you but our minister said this is a controversial matter and we can’t join you.’” One of the project’s most enthusiastic supporters quit when his employer warned him that “it was foolish to get mixed up in controversial cases.” Finally, after two weeks of intensive effort, Roth was left with only four willing parents whose children would not graduate before the impending test case wound its way through the courts.[1]

[1] Seven years earlier, a suit challenging the reading of verses from the Bible in New Jersey public schools had been dismissed by the United States Supreme Court because all of the plaintiffs’ children had graduated before the case reached its docket.

In addition to Roth, the prospective plaintiffs whose names were given to Butler early in October were composed of three men and one woman. Steven I. Engel, a big, balding man in his late thirties, whose seven-year-old son Michael attended the Searington School, was the international sales manager for a textile firm. A precise speaker, Engel was a Reform Jew. Forty-five-year-old Daniel Lichtenstein, a manufacturer’s representative, had three children in the district’s schools. Like Engel, he was Jewish and had emigrated to Nassau County from Brooklyn. A deeply tanned, stocky man with an outgoing personality, he was a handball and bridge expert. Paradoxically, he had served as campaign manager for Mary Harte, the school trustee who had moved the adoption of the Regents’ Prayer, when she first ran for the Board of Education.

Monroe Lerner, an account executive in a Wall Street firm, was an analytical man who was not one to make any hasty decisions. Tall and balding, he had one child, seven-year-old Cynthia, who attended the Searington School. He was a member of the Ethical Culture Society. Lenore Lyons, whose husband did not share her antipathy toward the Regents’ Prayer, was a tall, dark-haired woman with three children of school age. Easily the most attractive member of Roth’s little band, Mrs. Lyons was the Religious Education Chairman at the Unitarian Church she and her family attended.

Before resorting to the courts, the prospective plaintiffs were required by law to submit a formal request to the school board asking it to rescind its July resolution adopting the Regents’ Prayer. On December 4, a letter signed by all five parents was mailed to the school district’s Administration Building in New Hyde Park. “We, and each of us,” it stated bluntly, “hereby demand that you discontinue, or cause to be discontinued, the practice instituted for the first time at the beginning of the current school year of having a prayer said daily following the Salute to the Flag in all the schools of the district, and particularly the schools which our children attend.” The prayer, the letter continued, was “a violation of the Constitution of the United States and of the State of New York.”

On January 6, 1959, Florence Alnwick, the clerk of the Board of Education, wrote to Butler. “As you are probably aware,” she said, “the Education Law confers certain authority upon the Board of Education and pursuant thereto the Board of Education on July 8, 1958, adopted a resolution authorizing and directing the daily use of the Regents’ recommended prayer, to which you refer, in the schools within the district.” Accordingly, she had been directed by the Board of Education to advise the lawyer that no further action on the subject of the prayer was contemplated.

While he had been waiting for the Board’s reply, Butler had not been idle. Anticipating a negative response, he had began preparing a petition to the Nassau County Supreme Court shortly after his five plaintiffs had been selected. By year’s end, he had, with the aid of his partner, Stanley Geller, whose resemblance to Gregory Peck was startling, finished his labors and, two days before receipt of the board’s letter, the petition was verified by Roth and his fellow plaintiffs. Addressed to William J. Vitale, Jr., Philip J. Fried, Mary Harte, Anne Birch and Richard Saunders, the members of the Board of Education, it asked the court to direct them “to discontinue or cause to be discontinued in the schools of said district the saying of the prayer designated as the Regents’ Prayer.”

In the main, the plaintiffs claimed that “the saying of said prayer and the manner and setting in which it is said,” violated both the Federal and State Constitutions. According to them, District Superintendent Peck had established a daily ritual for saying the Regents Prayer. “Each morning at the commencement of each day in each school following the salute to the Flag,” their petition read, “the said prayer is said aloud. The prayer is led by the teacher or by a student selected by the teacher with the other students joining therein. The prayer is said with the hands clasped together in front of the body, fingers extended and pointed upwards in the manner of a suppliant. During the saying of the prayer, no student is permitted to leave the classroom.”

On February 18, the school board served its answering papers on Butler. Represented by handsome, dark-haired Bertram B. Daiker of the Port Washington law firm of Gunn, Neier & Daiker, it denied that the saying of the Regents’ Prayer violated either the United States or the New York Constitutions. Moreover, it claimed that, not only did the petitioners lack the power “to interfere with the saying of the prayer by the children of others under the color of judicial process or otherwise,” but that their lawsuit, if successful, would be tantamount to an interference with freedom of religion.

An affidavit by William J. Vitale, Jr., the dapper president of the school board, accompanied the latter’s answer. Vitale pointed out that, since the beginning of the school year, only one parent had requested that his child be excused from the saying of the prayer. In addition, no child had asked to leave the room during the prayer. As for the petitioners’ claim that children had been forced or shown how to pray, this was simply not the case. “On the contrary,” he said, “the principals and teachers in the School District have been directed and are following the directions that under no circumstances shall a pupil in any way be made or encouraged to join in the prayer and no teacher has instructed the pupils how they are to hold their hands or otherwise conduct themselves during the saying of the prayer.”

Both as a school board member and a father, Vitale felt that the prayer was beneficial. “I am fully conscious of the need for instilling in the youth of today some recognition of the moral and spiritual values which are part of the heritage of this country and of this state,” he argued. “The brief moment of prayer, by those who join in it at the opening of school each day, cannot help but remind those children, in the words of our State Constitution, that by acknowledging their dependence on God, they may ‘secure’ the blessings of Freedom granted by Almighty God.”

With the issue clearly joined, interest in the pending case began to develop rapidly. On February 24, sixteen residents of the school district applied for the right to intervene in support of the Regents’ Prayer. Speaking through their attorney, tall and articulate Porter R. Chandler, a former president of the Guild of Catholic Lawyers, they maintained that they had sufficient interest in the retention of the prayer to be allowed to participate. Although Butler objected strenuously to their motion, it was swiftly granted by Judge Bernard S. Meyer. The intervenors’ participation, however, was limited to the merits of the constitutional questions raised by the petitioners.

While they were waiting for their case to be argued, the plaintiffs had good cause to recall Rundquist’s warning to Roth in September. From the time their suit became known, all five were harrassed by threatening letters and telephone calls. One caller told Roth that an organization known as the Union Street Benevolent Society was preparing to bomb his home. On many nights, the plastics manufacturer was forced to take his telephone receiver off the hook in order to sleep. “We’re going to blow up your car,” one gruff voice said. “Keep your eyes on your children,” another warned.

On February 24, the contentions of all the parties were argued before Judge Meyer in the spacious county courthouse on Mineola’s Old Country Road. It took the tall, youthful-appearing judge exactly six months to reach his decision. In a sixty-six-page opinion, he came to the conclusion the school board’s resolution did not violate the federal or state constitutions. In particular, he stressed that “the recognition of prayer is an integral part of our national heritage [and] that prayer in the schools is permissible, not as a means of teaching ‘spiritual values,’ but because ... at the time of the adoption of the First and Fourteenth Amendments this was the accepted practice.”

However, he did find fault with the board’s resolution of July 8, 1958, which directed “that the Regents’ prayer be said daily in our schools.” Because the resolution was couched in what he called “mandatory terms,” Meyer ordered Vitale and his fellow board members to modify it so as “to establish a procedure whereby the parents of each child are advised of the adoption of the resolution calling for the saying of prayer, of the wording of the prayer and of the procedure to be followed when it is said and requested to indicate whether the child shall or shall not participate in the exercise.” The case was “remanded to the Board of Education for further proceedings not inconsistent with this opinion.”

At the end of his long opinion, the judge thanked all the lawyers involved “for the excellent presentation, not only in oral argument, but in the original and supplemental briefs.” In closing, he referred to an 1837 opinion of the Superintendent of Common Schools of the State of New York. “Written one hundred and twenty years ago,” he said, “the following statement, in the Court’s view, most completely conforms to the requirements of both constitutional law and reason: ‘The simple rule, so to exercise your own rights as not to infringe on those of others, will preserve equal justice among all, promote harmony, and insure success to our schools.’”

Ten days after Judge Meyer’s decision, the school board took steps to comply with the latter part of his order. In a brief regulation, teachers were directed to refrain from commenting “on participation or non-participation in the exercise.” In addition, children whose parents had submitted written requests to the principals of their schools were “to be excused from participating or from the room during the prayer exercise.” Five days later, each parent in the district received a letter from District Principal Peck. After setting forth the prayer, Mr. Peck informed his addressees that “any parent or guardian who does not wish his child to say the prayer is requested to write a letter to the principal of the school his child attends, indicating whether he wants his child excused from the room or to remain silent while the prayer is being said.”

In October, Butler appealed to the Appellate Division of the Supreme Court. During the year that intervened before the case was finally argued before the five-judge court, the school board asked Judge Meyer to dismiss the proceeding on the merits. According to Philip J. Fried, who, on July 1, had succeeded Vitale as the board’s president, Peck’s letter to the district’s parents fully complied with Meyer’s decision and there was no longer any reason for delaying the inevitable. Meyer bowed to Fried’s inescapable logic. On March 17, 1961, he stated: “It appearing to the court that respondent has complied with the directions contained in the opinion of this court in this proceeding dated August 24, 1959, it is ordered that this proceeding be and is dismissed on the merits.”

In opposing the board’s motion, Roth _et al_ claimed that Peck’s letter did not cure the fundamental defects involved in the saying of the Regents’ Prayer. “Petitioners maintain,” they said, “that the saying of the so-called ‘Regents’ Prayer’ in the schools ... at the direction of and under the auspices of the Board of Education, violated the Constitutions of both this State and the United States. They maintain that the matter of the prayer is not within the cognizance of the Board and should not have been remanded to respondents for further action. They do not believe, therefore, that any actions taken by respondents on remand could have cured the fatal defects in the saying of the Prayer. Indeed, petitioners submit that any actions taken by respondents since remand constitute an additional violation or additional violations of the State and Federal Constitutions.”

On October 17, the Appellate Division refused to disturb Judge Meyer’s ruling. Four of the judges agreed fully with Meyer’s opinion. Associate Justice George J. Beldock, however, although in favor of retaining the school prayer, minced no words in declaring that he did not subscribe to the lower court’s reasons for denying the petition. In particular, he found fault with Meyer’s rationale that he was sustaining the prayer because it was “the accepted practice” before the adoption of the federal constitution. As far as he was concerned, the prayer was not religious training and, therefore, was not prohibited by the Constitution. This, he concluded, is what Judge Meyer should have stated in no uncertain terms.

On May 25, 1961, Butler, Chandler and Daiker journeyed to Albany to appear before the Court of Appeals, New York’s highest tribunal. There, together with attorneys for the Board of Regents and the American Jewish Committee, they argued the pros and cons of the school prayer issue. Six weeks later, Chief Judge Charles S. Desmond, speaking for himself and four of his colleagues, affirmed Meyer’s decision. In a brief opinion, he stated that a belief in God “has been maintained without break from the days of the Founding Fathers to the day of the inauguration of President Kennedy.”

He insisted that the Regents’ Prayer did not in the least infringe on the rights of minorities. “Belief in a Supreme Being is as essential and permanent a feature of the American governmental system,” he emphasized, “as is freedom of worship, equality under the law and due process of law. Like them it is an American absolute, an application of the natural beliefs on which the Republic was founded and which in turn presuppose an Omnipotent Being.” Although he was uncertain as to the eventual success of the prayer service, he heartily approved of the motives of both the Regents and the Herricks School Board.

But, for the first time since the case had started its long, tortuous climb up the judicial ladder, there was a dissent. Two of the seven judges, Marvin R. Dye and Stanley H. Fuld, agreed with Butler’s contention that the prayer was unconstitutional. “In sponsoring a religious program,” they said, “the State enters a field which it has been thought best to leave to the church alone. However salutary the underlying purpose of the requirement may be, it nonetheless gives to the State a direct supervision and influence that overstep the line making the division between church and state and cannot help but lead to a gradual erosion of the mighty bulwark erected by the First Amendment.” For this reason, Dye and Fuld felt that the school board should have been ordered to discontinue the use of the Regents’ Prayer.

The way was now clear for Butler to ask the United States Supreme Court to consider the case. On October 4, 1961, he filed a petition for a _writ of certiorari_, a necessary prerequisite to an appeal. Two months later, in a brief order, the nine justices granted the writ. Three years, two months and twenty-five days after the board of the New York Civil Liberties Union had voted to support Roth, the case, which was now officially known as No. 468 of the high court’s October Term, 1961, had finally reached Washington.

Oral arguments in the Supreme Court’s stately first-floor courtroom took place on April 3, 1962. In addition to the points raised by Butler, Daiker and Chandler, the attorneys general of seventeen other states joined Roger Foley, Nevada’s chief legal officer, in a brief which urged Chief Justice Earl Warren and his eight colleagues to see to it that “we shall ever remain a religious people” by sustaining the Regents’ Prayer. The Synagogue Council, the American Jewish Committee, the Anti-Defamation League of B’nai B’rith and the American Ethical Union joined Butler in asking for a reversal of the lower court decisions.

The latter commenced his argument by reciting the Regents’ Prayer. “What’s wrong with that?” interrupted Justice Harlan. “There’s nothing wrong with that,” Butler replied. “We have no objection to the prayer as such. I have come before this court to defend, not attack religion. Our objection is to the use of public facilities for religious purposes.”

Frankfurter, who was destined to be disabled by a paralyzing stroke three days later, broke in. “I want you to be perfectly candid with me, Mr. Butler,” he piped. “Do you think the public school system should be secularized?” The lawyer thought for a moment. “Yes, I do,” he responded, “because, on balance, the threat to religious freedom is so great that I would rather have secularization than the state in the business of religion.”

Justice Brennan had one question. Did Mr. Butler think that there was any distinction between teaching religion and teaching about religion? He did. “The first is objectionable,” he said. “The second is the duty of the state.” Potter Stewart asked whether there was any difference between the prayer and the Salute to the Flag. Butler didn’t hesitate. “There certainly is,” he replied. “The prayer is a religious utterance and the salute a political one.”

During Daiker’s presentation, Warren wanted to know whether the school board’s attorney considered the Regents’ Prayer a religious exercise. “No, I do not,” the lawyer replied. “It is merely an expression of the spiritual heritage of our nation, that the Founding Fathers believed in God.” The Chief Justice smiled. “I would expect you to take that position,” he commented wryly. Black had one question for Chandler. Would he have any objection to the prayer had it been a Mohammedan one? “I would, your Honor,” he answered. “A Mohammedan prayer does not reflect the spiritual heritage of this country.”

Monday, June 25, 1962, was the last decision day before the Supreme Court adjourned for the summer. It also marked the end of Associate Justice Hugo L. Black’s twenty-fifth consecutive term of court. In a brief ceremony before attending to his crowded calendar, Warren commended Black for his long service. “Of the ninety-seven justices who have been appointed to the court,” he observed, “only sixteen have served as long as Mr. Justice Black and none with greater fidelity or singleness of purpose. His unflagging devotion has been to the Constitution of the United States.” Black, who apparently had not been informed in advance of the intended tribute, slumped in his seat as the Chief Justice spoke.

The prayer ruling was the first of seventeen to be announced by the court. Authored by Black, the fifteen-page majority opinion came to the conclusion that New York’s use of the public school system to encourage recitation of the Regents’ Prayer was “wholly inconsistent” with the First Amendment’s stricture against any law “respecting an establishment of religion.” “The constitutional prohibition against law respecting an establishment of religion,” Black wrote, “must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” Accordingly, the judgment of the Court of Appeals was reversed by a vote of six to one.[2]

[2] Justices Frankfurter and White took no part in the decision, the former being ill and the latter having just been named to the court by President Kennedy.

His opinion finished, Black looked up from the papers in front of him. “The prayer of each man from his soul,” he said in a low voice, “must be his and his alone. That is the genius of the First Amendment. If there is any one thing in the First Amendment, it is that the right of the people to pray in their own way is not to be controlled by the election returns.”

As the reporters rushed for the telephones in their basement press room, Justice William O. Douglas began reading portions of a concurring opinion which, while wholly in favor of the case’s result, went much further than Black. As Douglas saw it, the Constitution prohibited any form of “religion-financing” by government. This would include chaplains in the armed forces, compulsory chapel at West Point and Annapolis, federal or state aid to parochial schools, the use of the Bible to administer oaths and the inclusion of God in the Pledge of Allegiance. “Our system at the federal and state levels is presently honeycombed with such financing,” he said. “Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.”

He wanted it clearly understood that his reasoning did not stem from any hostility toward religion. “The First Amendment leaves the government in a position not of hostility to religion but of neutrality,” he explained. “The philosophy is that the atheist or agnostic--the non-believer--is entitled to go his own way. The philosophy is that if government interferes in matters spiritual, it will be a decisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests.”