Expanding Civil Rights
by Jeffrey Rosen
From the Civil War until the New Deal era, the Court was more concerned with economic rights than with civil rights and civil liberties, largely because of its decision in the late 19th century not to force the states to respect the Bill of Rights. As a result, controversies involving voting rights, criminal procedure, and religion were almost exclusively contested in state courts and legislatures before World War II. After the Court began upholding the New Deal in 1937, however, that began to change. In United States v. Carolene Products Co. (1938), the Court suggested that it would in the future uphold most economic regulation, but would be more skeptical of laws that discriminated against minorities, like African Americans, or that violated the Bill of Rights. And over the course of the 1950s and '60s, the Court began, in a piecemeal fashion, to strike down state laws that violated various guarantees in the Bill of Rights. This slow process of "incorporation" of the Bill of Rights against the states through the Fourteenth Amendment led to many of the most controversial decisions of the postwar era.
The battle to incorporate the Bill of Rights against the states was led by Justice Hugo Black, a former senator from Alabama, whose Supreme Court nomination by Franklin Roosevelt became mired in controversy after his confirmation, when the newspapers discovered that he had been a member of the Ku Klux Klan. Despite (or perhaps because of) this illiberal beginning, Black became one of the most passionate and effective civil libertarians of his time: he displayed a messianic belief that the states and the federal government should have to abide by every word in the Constitution and Bill of Rights -- nothing more and nothing less. Black's leading opponent in this crusade was Justice Felix Frankfurter, who insisted that judges should be able to pick and choose among principles fundamental to constitutional liberty. Although Frankfurter, a former Harvard law professor, condescendingly dismissed Black's claims that the framers of the Fourteenth Amendment had intended to incorporate the Bill of Rights against the states, the Court eventually came to incorporate most of it.
Black's most important victories involved the First Amendment guarantees of free speech and religion, which he revered with the fervor of a constitutional fundamentalist. (The First Amendment states that "Congress shall make no law" abridging free speech, and Black always took this command literally, insisting that no law meant "NO LAW.") He got off to a shaky start in First Amendment cases, joining Justice Frankfurter's decision for the Court in 1940 to uphold the right of public schools to expel students who refused to salute the American flag (Minersville School District v. Gobitis). But Black soon decided he had made a mistake and, three years later, helped persuade a majority of the Court to overrule Frankfurter's opinion and strike down mandatory flag salutes (West Virginia Board of Education v. Barnette). From that moment, Black was fierce in his defense of the rights of religious conscience and free speech. His most important First Amendment decision came in Engel v. Vitale (1962), where he wrote an opinion for the Court striking down state-sponsored prayers in schools -- one of the most controversial decisions of the Warren era.
Despite criticism of the Warren Court's decisions invovling individual rights, most of its decisions were popular with national majorities.
Reproduction courtesy of Corbis Images
Engel v. Vitale is the 1962 landmark Supreme Court decision that struck down prayer in public schools.
The case presented squarely the question of whether a public school could sanction classroom prayers at a time when America was increasingly pluralistic and secular. As the legal historian Lucas Powe wrote in his study of the Warren Court, "the religiously pluralistic society of the 1960s … [garnered] terrific support" for the Supreme Court's Establishment Clause decisions prior to Engel. But that did not mean the Engelwas not controversial. It was anything but.
Engel is widely viewed as one of the most unpopular decisions in Supreme Court history. Rodney K. Smith wrote in his study on public prayer, and the Constitution, public furor with the Engeldecision was "without equal" in any prior Supreme Court case. Indeed, the American public's reaction to Engel included "public denunciations, picketing, billboards, letter-writing campaigns, editorials, resolutions, pay retaliation, legislation, vows of defiance, noncompliance, and calls to amend the Constitution, impeach the Justices, strip their jurisdiction, buy them Bibles, and inscribe the words 'In God We Trust' above their bench." On July 9, 1962, NEWSWEEK reported a "swell of indignation, astonishment, and bewilderment that swept across the nation" following the Engeldecision. Fifteen States refused to discontinue prayer and Bible reading in their schools. A Gallup poll taken soon after the decision revealed seventy-nine percent of Americans disapproved of the ruling. The New York Times reported that, after Engel, the negative mail the Supreme Court receivedwas "the largest in the tribunal's history."
Engel provoked outrage. It infuriated an American public, unlike most other Supreme Court decisions. But the American public that Engel vexed was more secular and pluralistic than it had ever been. Why did the Supreme Court's decision to end school prayer result in so much hostility?
Engel began with a classified ad. One parent was seeking support from others in challenging the New York school board's decision to begin the class with ecumenical prayer. The prayer was short: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." And it was not mandatory. Students were allowed to leave the room, should they elect to do so. Steven Engel answered the ad.
The story Engel tells is one about the tension between church and state. Engel thus reveals a country that was shedding its Protestant identity for a pluralist conception of itself. The influx of immigrants and their religions altered the relationship between church and state. In 1850, the Catholic population in the United States stood at 1.6 million. Fifty years later, it was 12 million and by 1930 doubled to 24 million. After World War II, the Catholic population was more than 31 million and the largest denomination in the States. Compared to Catholics, Jews were a small population in the United States, only 3% in 1930. But the Holocaust laid claim to the American conscience and heightened Jewish support for religious freedom. As such, by the 1950s, America was a pluralist country. Across eighteen religious denominations were millions of members, and Protestantism, Catholicism, and Judaism emerged as the predominant religious identities in America.
The legal argument in Engel centered on the U.S. Constitution's Establishment Clause, found in the First Amendment. It reads, "Congress shall make no law respecting an establishment of religion." It omits any restrictions on the states. The debates in the state ratifying conventions and the First Congress clarified that the First Amendment's Establishment Clause was intended only as a limit on the federal government. The states could do as they pleased. The Constitution historian Kurt T. Lash writes, "the original Establishment Clause was intended to prohibit federal power over the subject of religion, reserving the same to the states." Accordingly, the original Establishment Clause embodied the principle of federalism–the federal government could neither establish religion at the federal level nor disestablish religion in the states.
However, Engel came after the Supreme Court decided to incorporate the Establishment Clause into the Fourteenth Amendment's due process protections. With the 1879 decision of Reynolds v. United States, the Supreme Court defended a strong separation of church and state. Then with Everson v. Board of Education in 1947, the Supreme Court constitutionalized the "wall of separation between church and State" by applying the Establishment Clause to State law. The separation between church and state was tested once again in 1948 with Illinois ex rel. McCollum v. Board of Education. The case centered on the power of a state to aid religious instruction through its public school system. In another landmark decision, the Court invalidated the early-release program for religious instruction for violating the Establishment Clause. By the time the Supreme Court granted certiorari for Engel, the Establishment Clause was a firm limit on individual States' establishment of religion. The bridge the Court would have to cross was whether a public school classroom prayer–if optional and denominationally neutral–violated the Establishment Clause.
The Court decided 6–1 that reciting government-written prayers in public schools was a violation of the Establishment Clause (as applied to the States). Justice Black wrote the opinion for the Court, describing the long history of church and state and concluding that prayer is innately religious –that any prescription of such activity by a state flouts the Constitution. For the Court, it was no defense that the prayer was nondenominational and voluntary. The mere promotion of prayer ran the Establishment Clause afoul because any form of prayer was sufficient to trigger the principle of separation of church and state. In a concurring opinion, Justice Douglas wrote that the Establishment Clause should prevent state funding of religious schools. Justice Stewart, the lone dissent, argued for a narrower reading of the Establishment Clause. He believed that the clause was intended only to prevent the creation of state-sponsored churches; the Constitution could not prevent a public school from promoting a voluntary, nondenominational prayer.
[Last updated in June of 2020 by theWex Definitions Team]