Supreme Court of USA takes U turn on religious establishment prohibition!
Prohibition on State sponsoring any religious establishment:
First Amendment which is also called Article 1 of Bill of Rights section of Constitution of USA, provides as under:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In 1962 Board of Education, New York, acting in its official capacity under state law, directed the School District’s principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”
History of America’s separation of State and Religion:
Supreme Court of USA struck down this directive with the following observation about origin of establishment clause in USA Constitution:
It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549, [Footnote 5] set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax supported Church of England. [Footnote 6] The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. [Footnote 7] Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs. [Footnote 8] Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England’s governmentally ordained and supported religion………..
By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. [Source Page 370 U. S. at 426-427, 430]
Striking down the directive for prayers as violative of establishment clause:
Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.
Dissenting judgement in Engel v. Vitale:
It may be seen that Justice Douglas and Justice Stewart delivered dissenting opinion in aforesaid case. For sake of brevity only few lines are extracted, in which reference has been made to ‘traditions’ without any attempt to explain the history which is quoted above:
I can not say that to authorize this prayer is to establish a religion in the strictly historic meaning………. …… We are religious people whose institutions pre-suppose a Supreme Being…………..The First Amendment leaves the Government in a position not of hostility to religion but of neutrality.
….Since the days of John Marshall our Crier has said, “God save the United States and the House of Honourable Court.” Both Senate and House of Representatives open their daily Sessions with prayer….
Nebraska Legislature had tradition of holding prayer, similar to the traditions mentioned in the aforesaid dissenting opinions in Engle v. Vitale but with the exceptions that these prayers were conduction by local Chaplain who was also paid from public funds to the service. There can not be better example of State sponsoring a particular religion in preference to other religions but Supreme Court decided to look at the other way, with these observations:
The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, “God save the United States and this Honorable Court.” The same invocation occurs at all sessions of this Court.
The Court did not refer to Engle v. Vitale in this case instead the reliance was made on Abington School District v. Schempp which was a case where teaching of bible was carried out with the consent of majority. Again in this case no reference was made to historical reasons extracted first above. There is no reference to the fact that Constitutional interpretation is not an interpretation of majority but is to protect the minority. The trend however continued this year in the case of Town of Greece v. Galloway.
Preference to christian clergy in 1999 not hit by establishment clause:
Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board’s “chaplain for the month” and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.
While the prayer program may be open to all creeds, nearly all local congregations are Christian. Citizens alleged violation of the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers and sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.”
Now the Supreme Court has expanded the interpretation of religious establishment clause:
Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, pp. 12–13 (1997). In the 1850’s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S. Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, id., at 3; and the cost of the chaplain’s salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of Kennedy, J.); see also School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U. S. 677 –704 (2005) (Breyer, J., concurring in judgment). [Source: Town of Greece v. Galloway, (Supreme Court of USA)]
The reason that this judgement is criticised as a repeal of First Amendment is that it completely ignores the history which led to founding of America and incorporation of First Amendment. Instead the judges have preferred their personal version of separation of State and Religion. In fact they had no courage to address the following rationale of Madison, the author of First Amendment:
To those who may subscribe to the view that, because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:
“[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever? [Source: 370 U. S. at 436]
The judgement of US Supreme Court on establishment clause about secularism would however be carol for the ears of BJP and it’s Prime Ministerial Candidate Mr. Nrendra Modi as their interpretation of secularism is exactly the same as of US Supreme Court Today.