Chapter XI: Preface: XI (10)

In early August, Roth, who was now more uneasy than ever about the Regents’ Prayer, arrived at Rundquist’s ninth-floor office on lower Fifth Avenue. Although the latter shared Roth’s doubts about the prayer’s constitutionality, he pointed out that any legal action to invalidate it would almost certainly subject Roth and other parents who might join with him to strong community pressures. “You will be hated and despised by most of your neighbors,” Rundquist told his caller, “and your children will have to face the scorn of many of their classmates. But if you are willing to endure all of this, I’ll query our board of directors.” Roth nodded his head. “I’m willing,” he replied firmly.

On September 4, Rundquist sent a memorandum to the members of his board which detailed several items on the proposed agenda for their regular monthly meeting five days later. Item II read as follows:

Regents’ Prayer For Public Schools

The Situation:

On July 8 the School Board of the Herricks Union Free School District (Nassau County) voted that the school day shall be opened by recitation of the following prayer, recommended by the Board of Regents in November, 1951: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.”

At the time that the proposed prayer was released the NYCLU, along with many civic organizations, expressed its opposition to reciting this prayer in the public schools through a public statement to the press and a letter to the New York City Board of Education (December, 1951). We also requested that the matter be considered at a public meeting so that we might have an opportunity to present our views on the matter.

Because of public reaction to the Regents’ proposal, the New York City Board of Education took no action until January 15, 1953. At that time, it adopted a resolution that students sing the fourth stanza of “America” each school day, following the Pledge of Allegiance: ‘Our fathers’ God, to Thee/Author of Liberty/To Thee I sing/Long may our land be bright/With freedom’s holy light/Protect us by Thy might/Great God, our King.

The Question:

Should the NYCLU adhere to the policy adopted in 1951? If so, shall we implement our position by supporting a group of residents in the Herricks School District who seek to enjoin the School Board from proceeding with the recitation of the prayer?

The 1951 letter to which Mr. Rundquist referred had been sent to Maximilian Moss, the President of the New York City Board of Education. In it, John Paul Jones, then the Union’s chairman, had asked for a public hearing before the Regents’ Prayer was considered. “Our opposition,” Jones had written, “is based in law upon the ruling of the United States Supreme Court that neither a state nor the Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or proffer one religion over another. The Union believes that the proposed non-denominational prayer falls within the ban of the First Amendment as thus interpreted by the Supreme Court.”

Jones was quick to point out that his organization had no objection to programs devoted to spiritual teaching, but that, since it was impossible to present such programs without interpretation, they would inevitably lead to the expression of sectarian points of view. “Our opposition to the proposal of the Regents is not opposition to the teaching of religion,” he concluded. “But it is the belief of the Union that the teaching of our spiritual heritage, through prayer and special programs, is the function of religious leaders and of parents and not the proper function of public school teachers conducting classes in a public school supported by public funds.”

On September 9, Rundquist reviewed the situation for the Union’s Board of Directors at their regular luncheon meeting at a midtown hotel. While several of his listeners thought that it would be wiser to work through the legislature rather than the courts, the majority voted to assist Roth and his neighbors with legal help. “It was moved and passed,” the minutes of the meeting read, “that we re-affirm our 1951 position in opposition to the prayer and, assuming that we have counsel willing and with time to take over, that we intervene in the case.”

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.”

Mr. Justice Stewart was the only member of the court to voice a dissent. “I think the Court has misapplied a great constitutional principle,” he declared. “I cannot see how an official religion is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation.” His brief opinion ended with the observation that the patriots who signed the Declaration of Independence did so with a self-styled “reliance on the Protection of Divine Providence.”

The majority decision caused an immediate reaction. George Andrews, an outraged Alabama Congressman, complained that “they put the Negroes in the schools and now they’ve driven God out.” New York’s Governor Nelson Rockefeller, who apparently hadn’t read or understood Black’s opinion, hoped that “adjustments” could be worked out that would make the prayer acceptable to the Supreme Court. Francis Cardinal Spellman was “shocked and frightened that the Supreme Court has declared unconstitutional a simple and voluntary declaration of belief in God by public school children.” On the west coast, James Francis Cardinal McIntyre, the Archbishop of Los Angeles, called the decision “positively shocking and scandalizing to one of American blood and principle.”

Evangelist Billy Graham was “shocked and disappointed” by what he called “another step toward secularism in the United States.” Right Reverend James A. Pike, Bishop of the Protestant Episcopal Diocese of California and a lawyer himself, said that he was surprised to see that the Warren Court had extended “to an obviously non-sectarian prayer the prohibition against ‘the establishment of religion,’ clearly intended by our forefathers to bar official status to any particular denomination or sect.” Representative John Bell Williams of Mississippi called the decision part of “a deliberate and carefully planned conspiracy to substitute materialism for spiritual values.” To Senator Herman E. Talmadge of Georgia, it was “an outrageous edict which has numbed the conscience and shocked the highest sensibilities of the nation.” The Alabama legislature quickly passed a resolution terming it “diabolical.”

Herbert Hoover and many other prominent Americans demanded an immediate amendment to the Constitution nullifying the prohibition against the prayer. “The Congress should at once submit an amendment which establishes the right to religious devotion in all governmental agencies,” the former President said angrily. Representative Roy A. Taylor of North Carolina, a Baptist deacon, complied at once. His proposed amendment was as definite as it was brief. “Notwithstanding the First and Fourteenth Amendments to the Constitution of the United States,” it read, “prayers may be offered and the Bible may be read in connection with the program of any public school in the United States.” Senator James O. Eastland announced that the Senate Judiciary Committee would meet at once to consider proposed amendments.

But the decision was not without its supporters. Dr. Sterling M. McMarrin, United States Commissioner of Education, felt that the outlawing of the prayer was no loss to religion. “Prayer that is essentially a ceremonial classroom function,” he explained, “has not much religious value.” Dr. Edgar Fuller, Executive Secretary of the Council of Chief State School Officers, stated that, “in my judgment, the Supreme Court is right.” Senator Jacob K. Javits of New York reminded parents that there was “plenty of opportunity to inculcate religious faith in the children at home and at weekend religious schools.” Rev. Dr. Dana McLean Greeley, president of the Unitarian Universalist Association, said that “the Supreme Court has acted clearly in support of the principle of the separation of church and state as guaranteed by the First Amendment of the Constitution.”

In Chicago, Dean M. Kelly, director of the National Council of Churches’ Department of Religious Liberty, was enthusiastic about the court’s action. “Many Christians,” he claimed, “will welcome this decision. It protects the religious rights of minorities and guards against the development of ‘public school religions’ which is neither Christianity nor Judaism, but something less than either.” At his press conference on June 27, President Kennedy said that he hoped that the decision would come as “a welcome reminder to every American family that we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of all of our children.”

In their own area, the victorious plaintiffs were disconcerted by the violence of the attack on the decision. Representative Frank J. Backer, a Nassau County Congressman, called it “the most tragic in the history of the United States.” William A. Bruno, a trustee of the nearby Hicksville Board of Education, said that his district would retain the prayer. “Let’s see what the Supreme Court will do about that!” he chortled. He told a reporter for The New York Times that the ruling proved that Robert Welch, the founder of the Birch Society, “had the right idea in asking for the impeachment of the Supreme Court.” Robert S. Hoshino, President of the mammoth Levittown School District, called the decision a victory for Communism. “Levittown will not vote out the Regents’ Prayer,” he prophesized. However, Dr. James E. Allen, Jr., the State’s Commissioner of Education, reminded recalcitrant local school boards that they would “have to enforce the Supreme Court decision immediately.”

Although they were bitterly disappointed by the case’s outcome, both Vitale and Daiker indicated that the Herricks School Board would not disobey the Supreme Court’s mandate. The former felt certain “that any of the people involved are prepared to adhere to the decision of the Court.” According to the lawyer, “the decision must be complied with.” Each man stressed the fact that no child had been forced to recite the prayer against its will. “At no time did we ever insist that a child should say it,” Vitale declared. “We set up procedures so no one would be compelled to say it and we felt sincerely we were not infringing on anyone’s constitutional rights.”

The plaintiffs were quietly jubilant over their triumph which the New York Civil Liberties Union called a “milestone” in the separation of church and state. Lenore Lyons said that the decision represented “both liberal and conservative thinking of the Supreme Court.” Engel, Lerner and Lichtenstein were “extremely happy.” Lawrence Roth, who referred to himself as “a very religious person but not a churchgoer,” viewed the case’s result as an indication of his conviction that “religious training is the prerogative of parents and not the duty of the state.” Butler claimed that the decision had helped rather than hindered religion. “In this country, with its many different faiths, religion has flourished because we have steadfastly adhered to the principle of separation of church and state,” he said. “The Supreme Court has today reaffirmed that principle.”

With the case over, Roth and his co-plaintiffs revealed that, since 1959, they had been subjected to a variety of community pressures, ranging from dirty looks to abusive telephone calls. In one house, the latter had become so vituperative that the children were forbidden to answer the phone. Many of the anonymous letters and postcards that had arrived regularly at each of the five homes were obscene, anti-Semitic or both. “Toward the end, it got so bad,” Roth said, “that my wife or I made it a point of getting the mail before the children could see it.”

Roth’s oldest son, Danny, who was now sixteen, said that his father’s leadership of the anti-prayer fight had made it very difficult for him at school. “There were arguments and pushing and name-calling,” he recalled. “In the halls, kids would yell out: ‘You’re a Commie’ or ‘Go home to Russia.’ At times I thought it might be easier for me if my father stopped what he was doing. But I never wanted him to. I believe very strongly that what he was doing was right. I’m very proud of my father, you know.”

The court’s decision heightened the bitter campaign against the plaintiffs. Not only did the number of vituperative telephone calls, letters and post cards increase, but Roth’s house was picketed by nine members of the newly formed Nationalist Party bearing signs which read: FBI, INVESTIGATE MR. ROTH! and IMPEACH THE PRO-RED SUPREME COURT. “The harassing phone calls got so bad Tuesday night,” Roth said, “that we finally had to take the receiver off the hook again. They were coming in at the rate of two calls a minute.” The anonymous callers shouted such threats as “Watch out for your child.... We’re going to blow up your car.... Don’t leave your house--something is going to happen to it.... We’ll get you.” One postcard was typical. “To the five Long Island parents,” it began. “You damn Jews with your liberal viewpoint are ruining the country.”

In addition, at least one candidate in the New York primary campaigns that began shortly after the decision, in an openly anti-Semitic appeal to Roman Catholic voters in Queens County’s Eleventh Assembly District, reminded them that the school prayer had been invalidated by persons with Jewish names. “These are the names you should know,” began a leaflet distributed by James E. McGinniss, an Independent Democrat, “Stephen Engel, Daniel Lichtenstein, Monroe Lerner, Lenore Lyons and Lawrence Roth. These people brought the legal action which resulted in the banning of the ‘prayer’ in our public schools.” Mr. McGinniss then urged registered Democrats to vote for him “if you want a public official who will remember the ‘Presence of God’ and who will sponsor and work for laws which will permit us to live and raise our children as God-fearing citizens.”[3]

[3] Mr. McGinniss was soundly defeated in the primary, running a poor third to winner Hyman J. Greenberg.

A week before the distribution of McGinniss’ fliers, the Jesuit magazine _America_ chimed in with a warning “to our Jewish friends.” In an outspoken editorial, the weekly reminded American Jewry that, although it could not be held fully responsible for the school prayer decision, its leaders would be well advised to curb the activities of certain Jewish agencies which, the magazine claimed, hoped to secularize public life from top to bottom. “It would be most unfortunate,” the editorial concluded, “if the entire Jewish community were to be blamed for the unrelenting pressure tactics of a small but overly vocal segment within it. When court victories produce only a harvest of fear and distrust, will it all have been worthwhile?”

The Regents’ Prayer is no longer recited in the Herricks school system--or, for that matter, anywhere else in New York State. But it will be a long time before the five people whose efforts led to its invalidation will be permitted to forget that they ran counter to the strong feelings of their community. “Mr. Rundquist warned me of what we could expect,” Roth acknowledged wryly, “but we never realized how bitter the attacks on us and our families would be. But none of us are sorry that we became involved in the case. We all feel that we have had a small part in clarifying and strengthening a vital constitutional safeguard.[4] For this, we were more than willing to endure whatever came our way.”

[4] More clarification is in the offing. On October 8, 1962, the Supreme Court agreed to pass on the constitutionality of another type of school prayer. It will shortly hear argument on the validity of a regulation of the Baltimore (Md.) School Board and a Pennsylvania statute, both of which require the reading of verses from the Bible at the opening of each school day.

Bibliography

In addition to available trial transcripts, records on appeal, and magazine and newspaper articles, the following books were consulted:

A Generation on Trial, by Alistair Cooke. New York: Alfred A. Knopf, 1950

After Twelve Years, by Michael A. Musmanno. New York: Alfred A. Knopf, 1939

Attorney for the Damned. Edited by Arthur Weinberg. New York: Simon & Schuster, 1957

Clarence Darrow for the Defense, by Irving Stone. Garden City, New York: Doubleday & Company, Inc., 1941

Commonwealth vs. Sacco and Vanzetti, by Robert Perry Weeks. Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1958

Courtroom, by Quentin Reynolds. New York: Farrar, Straus & Company, 1950

Crime, Its Cause and Treatment, by Clarence S. Darrow. New York: Thomas Y. Crowell, 1922

Fair Trial, by Richard B. Morris. New York: Alfred A. Knopf, 1952

In the Court of Public Opinion, by Alger Hiss. New York: Alfred A. Knopf, 1957

Letters of Sacco and Vanzetti. Edited by Marion Denman Frankfurter and Gardner Jackson. New York: The Vanguard Press, 1950

McCarthy and His Enemies, by William F. Buckley, Jr. and L. Brent Bozell. Chicago: H. Regnery Company, 1954

McCarthyism, The Fight for America, by Joseph R. McCarthy. New York: Devin-Adair Company, 1952

Myths After Lincoln, by Lloyd Lewis. New York: Harcourt Brace & Company, 1929

Ordeal by Slander, by Owen Lattimore. Boston: Little, Brown & Company, 1950

Origin of Species, by Charles R. Darwin. Philadelphia: University of Pennsylvania Press, 1958

Reverdy Johnson, by Bernard Christian Steiner. Baltimore: Norman, Remington Company, 1914

Sacco-Vanzetti--The Murder & The Myth, by Robert H. Montgomery. Devin-Adair Company, 1960 New York

Scottsboro Boy, by Haywood Patterson. New York: Doubleday & Company, Inc., 1950

Seeds of Treason, by Ralph de Toledano and Victor Lasky. New York: Funk & Wagnalls Co., Inc., 1950

Senator Joe McCarthy, by Richard H. Rovere. New York: Harcourt, Brace & Company, 1959

Six Days or Forever, by Ray Ginger. Boston: Beacon Press, 1958

Spies, Dupes and Diplomats, by Ralph de Toledano. New York: Duell, Sloan & Pearce, 1952

The Assassination of President Lincoln and the Trial of the Conspirators. The courtroom testimony as originally compiled by Benn Pitman. New York: Funk & Wagnalls Co., Inc., 1954

The Case for Courage, by William M. Kunstler. New York: William Morrow & Co., Inc., 1962

The Case for Mrs. Surratt, by Helen Jones Campbell. New York: G. P. Putnam’s Sons, 1943

The Case of Sacco and Vanzetti, by Felix Frankfurter. Boston: Little, Brown & Company, 1927

The Case of Thomas J. Mooney and Warren K. Billings, by Henry T. Hunt. New York: National Mooney-Billings Committee, 1929

The Judgment of Julius and Ethel Rosenberg, by John Wexley. New York: Cameron & Kahn, 1955

The Judicial Murder of Mary E. Surratt, by David Miller De Witt. Baltimore: J. Murphy Company, 1895

The Lamont Case. Edited by Philip Wittenberg. New York: Horizon Press, 1953

The Legacy of Holmes and Brandeis, by Samuel J. Konefsky. New York: The Macmillan Company, 1956

The Legacy of Sacco and Vanzetti, by G. Louis Joughin and Edmund M. Morgan. New York: Harcourt, Brace & Company, 1948

The Life & Death of Sacco and Vanzetti, by Eugene Lyons. New York: International Publishers, 1927

The Rosenberg Case: Fact and Fiction, by Solomon Andhil Fineberg. New York: Oceana Publications, Inc., 1953

The Sacco-Vanzetti Case, by Osmond K. Fraenkel. New York: Alfred A. Knopf, 1931

The Scottsboro Case. New York: The Scottsboro Defense Committee, 1936

The Story of my Life, by Clarence Darrow. New York: Charles Scribner’s Sons, 1932

The Strange Case of Alger Hiss, by Earl Jowitt. Garden City, New York: Doubleday & Company, Inc., 1953

The Untried Case, by Herbert E. Ehrmann. New York: The Vanguard Press, 1933

The World’s Most Famous Court Trial. Cincinnati: National Book Company, 1925

They Shall be Free, by Allen Knight Chalmers. Garden City, New York: Doubleday & Company, Inc., 1951

Thirteen Days, by Jeanette Augustus Marks. New York: A. C. Boni, 1929

Treason, by Nathaniel Weyl. Washington, D. C.: Public Affairs Press, 1950

Trial by Prejudice, by Arthur Garfield Hays. New York: Covici Friede, 1933

Trial by Television, by Michael W. Straight. Boston: Beacon Press, 1954

Was Justice Done?, by Malcolm P. Sharp. New York: Monthly Review Press, 1956

What Happened in the Mooney Case, by Ernest J. Hopkins. New York: Brewer, Warren & Putnam, 1932

Witness, by Whittaker Chambers. New York: Random House, 1952

Index

(First case references only)

A

Abel, Louis, 192

Abt, John, 138

Adams, Lee, 125

Adams, Samuel, 206

Affe, Carlos M., 94

Aiken, Frederick, 6

Allen, James E., Jr., 226

Alnwick, Florence, 215

_America_, 228

American Civil Liberties Union, 103

American Ethical Union, 221

American Jewish Committee, 220

Anderson, Walter, 159

Andrews, Bert, 153

Andrews, George, 224

Andrews, Lola R., 66

Andrower, Guiseppe, 94

Anti-Defamation League, 221

Appell, Donald T., 153

Arnold, Benedict, 166

Arnold, Samuel, 4

Arrogani, Harry, 85

Atomic Energy Act, 193

Atzerodt, George A., 4

B

Backer, Frank J., 226

Bailey, H. G., 122

Baldwin, Roger, 103

Barnes, Joseph K., 3

Barrett, Tracy F., 45

Bates, Ruby, 120

Bautista, Dora, 190

Beamish, Richard, 110

Beauregard, P. G. Toutant, 15

Behrsin, Hans, 70

Beldock, George J., 220

Benson, J. S., 130

Bentley, Elizabeth, 139, 190

Benton, William, 196

Berardelli, Alessandro, 68

Berle, Adolph A., Jr., 138

Bernhardt, George, 186

Billings, Warren K., 88

Binger, Carl, 162

Bingham, John A., 12

Birch, Anne, 216

Black, Hugo L., 222

Bloch, Alexander, 174

Bloch, Emanuel, 174

Boda, Mike, 74

Bohr, Neils, 178

Bonjionanni, Adeladi, 76

Booth, John Wilkes, 2

Bosco, Albert, 93

Bostock, James E., 68

Brady, Matthew, 64

Brennan, James M., 45

Brennan, William J. Jr., 222

Brenner, William, 82

Bridges, R. R., 124

Brini, Alphonsine, 91

Brini, Beltrando, 76

Brini, LeFavre, 92

Broadway, Jim, 125

Brodsky, Joseph R., 128

Brooks, Georgina, F., 76

Brophy, John P., 20

Bruno, William A., 226

Bryan, William Jennings, 103

Bryan, William Jennings, Jr., 107

Buckley, David, 73

Budenz, Louis, 198

Bunner, Stephen, 37

Burke, Frank J., 71

Burns, Francis, 2

Burns, James E., 86

Burns, William J., 33

Burrs, L. J., 128

Butler, John Washington, 102

Butler, William J., 213

Bykov, Colonel, 153