Evening star. [volume] (Washington, D.C.) 1854-1972, 1962-06-30

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majority opinion Of the SUI
preme Court, wherein it was
held that the voluntary reci-
tation Of a non-denomina-
tional prayer by public school
children of the State Of New
York constituted an estab-
lishment Of religion in viola
ton of the First Amendment
Of the Federal Constitution.
My dissent Is based on the
same ground that the Court
assigned in reaching the
conclusion it did, L., the
result constitutes govern
mental preference Of certain
religious sects as opposed to
others.
1t is too late for effective
criticism Of the Courts
persistent reliance on a mis-
reading of American constitu-
tional history which has been
discredited by sound scholar
ship. Prof. Corwin and Prof.
Crosskey, among others, both
eminent students Of American
constitutional history, have
demonstrated the limited
purposes which lay behind
the non-establishment clause
of the First Amendment, i.e.,
q prohibition was laid upon
the new Federal Government
against establishing a ma
tional religion and against
affording any religion or
religions q preferred status.
AS Prof. Crosskey's recent
monumental study Of the
antecedents Of the Constitu-
ton conclusively documents,
the non-establishment clause
of the First Amendment was
deliberately drawn to create
a field, not only Of exclusive
but Of inviolable State power"
respecting religious establish
ments.
We are forced to agree
that the decision in Engel
v. WHALE Is the logical cul-
mination of recent Supreme
Court decisions interpreting
the non-establishment clause.
However logical that result.
it nevertheless appears that
the Court may have painted
itself into a corner" For pur-
poses of argument, therefore,
one can accept the Courts
opinion in the Maryland test
oath case, Torcaso v. Watkins,
367 u. s. 48S, 495. In that
decision, the Court classified
among religions In this coun-
try which are entitled to the
projections established by the
First Amendment, the sectS
Of Buddhism, Taoism, Uni
tarianism, Ethical Culture.
Secular Humanism and 9TH
ers, including, I infer, agnos-
ticism and atheism. Some OF
these sects or PHILOSOPHERS
presuppose the non-existence
of a Supreme Being. Accord
ing to their tenets, charity,
honor, morality. good citizen
ship, patriotism and ethics
can be effectively instilled
without reliance on the pre-
sumption Of q Deity. Their
philosophy and their tenets
are propagated, consciously
or unconsciously. in those
public schools which attempt,
and commercially so, to teach
the above stated virtues in
this manner, without reliance
on or reference to those re-
ligions which teach that such
virtues have their roots in
belief in q Divinity.
Thus, it appears, under the
Courts own elastic definition
of religion and religious sects,
that the decision which con-
fronted it in Fngel v. Vitale
involved a Hobson's choice.
Which religious sect or sects
are to be preferred - those
presuming the existence Of
a Divine Being. or those pre-
ferring the non-existence of
such a being? The election.
however unintentional, has
been made to prefer those
sects which forswear belief
in a Divinity or in the Super
natural. One is entitled to
observe, however, that the
choice thus made on grounds
of the Courts own making
in the form Of prior decisions
and dicta is one which per-
mits the non-establishment
clause to be violated in favor
of the minority rather than
sanctioning its violation in
favor of the majority. I have
always been opposed to SUBJ
shutting the legitimate pro-
lection Of minority rights for
the principle Of majority rule,
I, therefore, disagree with
such misapplication Of that
principle in interpreting the
non-estab lishment clause as