Untitled Texas Attorney General Opinion ( 1962 )

Honorable J. W. Edgar. Opinion No.'WW-1445
Commissioner of Education
Texas Education Agency Re,: Implication of the recent
Austi!I, Texas United States Supreme
: Court-Isdecision regarding
prayer in the public schools
.,' of New York, and related
Dear Mr. Edgar: questions. .',
You have requested an opinionsfrom'this office
upon certain questions relating to the implication of the
recent United States,Supreme Court case of Eneel-v. Vitale,
U.S. 8 L.Ed.2d ,601; 82 S.Ct. - (19621, the so-
xed "School'Prayer Case.'I'.
Specif,icallyyou have pos'ed
the questions of whether, in view of the'deeis5on~'i.n
Engel
.
y Vitale, ,+p& a ~schooldistrqc,tmay lawfully:
"1. Permit a student or teacher to say a
blessing at mealtime in,a homeroom group;
"2. Provide a.pericd of silent meditation
during mealtime; ~.
‘3 . Have a prayer said at:the football
g&es, or other school sponsored public gather-
ings;
“4. Provide or allow for the'reading of
Bible passages in a homework or during school
assembly programs."
In connection with the questions posed you have
stated that there is no uniform policy, directive or practice
in.the schools of this~State concerning prayer or reading of
the Bible in connection with activities such as set forth in
the questions heretofore posed.
In the case of &se1 v. Vitale,,sunra, the Board
of Education of Union Free School District No. 9, NeilHyde
Park, had, while 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 pres-
ence of a teacher at the beginning of each~schoolday:
Honorable J. W. Edgar, page 2 (WW-144%
"Almighty God, we acknowledge.our depend-
ence upon Thee, and we beg Thy blessings upon
us9 our parents, our teachers and our country."
This daily procedure was adopted on the recommenda-
tion of the State Board of Regents. The State Board of Re-
gents is a governmental agency which had been created by the
Constitution of the State of New York and such agency had
been granted broad supervisory, execu1ive and legislative pow-
ers over the public school system of the State of New York
by the Legislature of the State of,New York. The officials
comprising the State Board of Regents had composed the above-
quoted prayer which they recommended and published as a part
of their "Statement on Moral and Spiritual Training in
Schools." In the instant case the prayer was said upon the
commencement of the school day and immediately following the
pledge of allegiance to the flag. The prayer was said aloud
by either the teacher or one of the students. However, no
,~student1Ja.S compelled to take part in such prayer, and could
even leave the classroom if he so 'desired.
'After the'practice of reciting'the Regents' prayer
had been adopted by the School District,.the parents of ten
children brought the instant action in a State court of New
York, and, in the wordsof Mr. Justice Black in the United
States Supreme Court's opinion in.Engel v. Vitale, w:
‘1. . . challenged the constituti;zcni.z of
both the state law,authorizine the SC s-
trict to direct the use of nrav r in nubliq
schools and the School District:s reaulation
,~orderinsthe recitation of this aarticular craver
on the ground that these actions of official gov-
ernmental agencies violate that part of~the First
Amendment of the Federal Constitution which com-
mands that 'Congress shall make no lalJ respecting
an establishment of religion'--a command which
was 'made applicable to the State of New York by
the Fourteenth Amendment of the said Constitu-
tion.' . . .'I (Emphasis added).
The trial court in New York inwhich this suit was
commenced, denied the relief requested by the parents. The
New York Court of Appeals sustained the order of the trial
court which had upheld the power of New York to use the Re-
gents' prayer as a part of the daily procedure of its public
schools so long~as the schools did not compel any pupil to
join in the prayer over his or his parents' objection. The
United States Supreme Court granted certiorari and in its de-
cision in En.aelv. Vitale, sunra, reversed and remanded the
Honorable J. W. Edgar, page 3 (W-1445)
decision of the New York courts.
The implications-of Ennel v. Vitale, sunra, upon
the questions posed in the instant opinion request are best
revealed by excerpts of pertinent portions of the majority
opinion of the Unived States Supreme Court in Engel v. Vitale,
m, and which are set forth as follows:
"We think that by using its public school
system to encouraae recitation of the Resents'
prayer; the State of New York has adopted a
nractice,whollv inconsistent with the Establish-
ment Clause. : . .
'1.. .
"The petitioners contend among other things
that the state laws requiring or permittinguse
of the Regents' prayer~must -be struck do%Jnas a
violation of the Establishment Clause because
that nraver was comoosed bv sovernmantal official8
as a cart of a'sov rnmental nroaram to furtha
reliaious beliefg.e For this reason, petitioners
argue, the State's use of the Regents' prayer in
the public school system ~breaches the constitu-
tional IJall of separation bet7rleen
Church and St&t&.
.We agree with that contention since we'think that
the constitutional prohibition againstlaws re-
specting an establishment of.religion must at
least mean that in this country~it is no Dart of
the business of .aovernmentto comnose official
pravers for any sroun of the American oeonle to
recite as a Dart of a relinious nroaram carried
gn bv sovernment.
II
. . .
II
. . . One of the greatest dangers to the
freedon of the.individual to worship in his own
way lay in the Government's.placing its official
stamp of approval upon one particular form of
prayer or one particular form of religious serv-
ices. . . The First Amendment was added.to the
Constitution to stand as a .guarantee that neither
the power nor the prestige of thenFederal Govern-
ment would be used to~control, support or influ-
ence the kinds of nraver that American people can
say--. . 0
Honorable J. W. Edgar, page 4: (ww-1445)
I,
. . . government in this country, be it
state or federal, is without Dower to nrescribe
bv law anv narticular form of Waver which is to
be used as an official nraver in carrying on any
program of governmentally sponsored religious
activity.
'1..'. each separate government in this
country should stav out of the business of writ-
ins or sanctioning official nravers and leave
that purely religious function to the people
themselves and to those the people choose to look
to for religious guidance."l (Emphasis added).
The majority opinion of the United States Supreme
Court in Enaelv. Vitale, m, was adoPted upon the vote
of five of the :,Justices. Justice Stewart dissented. Justice
fiankfurter'and:Justice 'Aite took no part in the decision.
Justice Douglas'i,corcurred
in the result but upon different
grounds which are set forth in his concurring opinion.
Essen+$ally, the concurring opinlon.of Justice
Douglas deals.with the question of:
'Whether the Government can constitutionally
finance a religious exercise.tt'
Justice Douglas concurs with the result reached by
the majority opinion; but bases -his reasoning, that there
has been a violation of the First Amendment of the United
States Constitution in the instant case, upon the grounds that
the activities of the public schools of New York constitute
the financing of a religious exercise by the State of New York.
However, the reasoning set forth in Justice Douglas'
concurring opinion can be given little or no more weight than
me./tThis last phrase was footnoted with the followingscom-
:
"There is of course nothing in the decision.reached here
that is inconsistent with the fact that school children and
others are officially encouraged to express love for our coun-
try by reciting historical docume,ntssuch as the Declaration
of Independence which contain references to the Diety or by
singing officially espoused anthems which include the compos-
er's professions of faith in a Supreme Being, or with the
fact that there are manv manifestations in our nublic life of
belief in God. Such patriotic or ceremonial occasions bear no
truesresemblance to the unquestioned religious exercise that
t e S t of Uew York has sponsored in'this instance. (Empha-
Sts a%ie3).
Honorable J. W. Edgar, page 5 (W-1445)
a dissenting opinion for the reason that the five Justices
voting for the majority opinion did not see fit to agree
with the grounds in such concurring opinionas a basis for
the result reached by the Court. Consequently, in applying
the decision handed.down by the United States Supreme Court
in Engel v. Vitale, suvra, we must be guided by the majority
opinion rather than the implications of the concurring opin-
ion.
Throughout the majority opinion of the Court in
Enael v. Vitale, sunra, the Court repeatedly refers to lack
of authority or power of any governmental body or agency to
compose, prescribe, support, or influence the type or kind
of prayer which may be said at any school activity. In turn,
the Court condemns any such effort by a goverbmental body or
agency to compose, prescribe, support .or influence the type
or kind of prayer to be said as a violation of the First
Amendment to the United States Constitution.
We are of the opinion that the decision of the
United States Supreme Court in Enpel v. Vitale; sunra, is one
of narrow implication rather than broad and all embracing
and we are of the further opinion that the Court by
%``ecision has merely rejected as unconstitutional any ef-
fort by governmental bodies or agencies to compose, prescribe,
support, or place its approval upon any particular prayer or
form of prayer which may be said during the course of some
private, public, or governmental activity or function.
Consequently, we are of the opinion that in regard
to the questions you have posed none of such activities are
illegal nor are they in violation of the First Amendment to
the United States Constitution as long as there is no action
by the State of,Texas or any of its agencies or political sub-
divisions to compose, prescribe, support or place its appro--
val upon any particular prayer or form of religious activity
which may constitute a part of some public school or public
school sponsored activity.
:SUMMARY
The decision of the United States Supreme
Court in the Enael v* Vitale case does notpro-
hibit the DUblic schools of the State of Texas
from allowing the saying of prayers or the read-
ing of p~assagesfrom the Bible during the course
of school activities or school-sponsored acti-
vities aslong as there is no action by the
Honorable J. K. Edgar, page 6 (WW-1445)
State of Texas or any of its agencies or poli-
tical subdivisions to compose, prescribe, sup-
port, or place its approval upon any particular
prayer or form of religious activity.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
Pat Bailey
PB:wb Assistant
APPROVED:
OPINION COMMITTEE ,
W. V. Geppert, Chairman
Howard Mays
Morgan Nesbitt
Scranton Jones
Ernest Fortenberry
REVIEWED FOR T@ ATTORNE? GEmRAL
BY:. Leonard Passmore