William Shakespeare wrote in Twelfth Night: “Some are born great, some achieve greatness and some have greatness thrust upon ‘em.”
Steven Engel says “alphabetical order” thrust his name into the position of lead plaintiff in the historic U.S. Supreme Court decision bearing his name. In Engel v. Vitale (1962), the U.S. Supreme Court struck down a New York Board of Regents policy that provided for teacher-led prayer in public schools.
Now 82, the only surviving plaintiff in the landmark case, Engel lives in Great Neck, N.Y., where the First Amendment Center Online reached him this week.
In 1951 and again in 1955 the Board of Regents recommended that school boards adopt a resolution calling for the reading of the following prayer in public school classrooms: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.”
In July 1958, the Board of Education of Union Free School District Number 9, Town of North Hempstead, adopted a resolution “that the Regents prayer be said daily in our schools.” School board officials said they were not violating individual rights because they included a provision in which students could opt out of the prayer with their parent’s signature.
However, Engel, who is Jewish, felt that such a practice was anathema to the Constitution and its Bill of Rights. He and four other parents sued, contending that the practice violated the religion clauses of the First Amendment.
“The only reason my name was listed first was because of alphabetical order,” said Engel, a retired businessman. “Some of the other plaintiffs had more to do with the suit.”
“The New York Board of Regents composed a prayer which was optional,” Engel said. “However, if your school board chose to use the prayer, your school had to use this one-size-fits-all prayer that doesn’t fit the religious faiths of all people.”
Engel said his community broke out in conflict over the practice. Knowing his two young children were essentially being told to recite a prayer in school that did not accurately reflect their faith, he joined with fellow parents Monroe Lerner, Lenore Lyons, Dan Lichtenstein and Larry Ross to challenge the practice.
“We thought: ‘Let’s take it to court,’” he said. “The Constitution begins with the words ‘We the People.’ It doesn’t begin with the words ‘We the Congress’ or ‘We the Judges’ or ‘We the Elite.’ The aims of the Constitution are set out in the Preamble. I considered myself a student of the Constitution and a historian. I knew the practice was unconstitutional.”
Lawsuit, negative reactions, first court losses
The parents sought legal support from the American Civil Liberties Union, which agreed to represent them. The parents filed suit in state court.
They faced negative community reaction for their lawsuit. “I was so taken aback by the negative reaction because I felt all along that we had done the right thing,” Engel recalls. “We received midnight calls (and calls) through the night, obscene calls and letters. Someone burned a cross under the gas tank of the car of my neighbor (and fellow plaintiff) Larry Ross.” Engel said his children endured taunting at school.
Unfortunately for Engel and his fellow plaintiffs, they met with no success in the state court system. In 1959, they lost before the Supreme Court of New York. In 1960, they lost before the Supreme Court of New York, Appellate Division. In 1961, they lost before the Court of Appeals of New York. In his opinion for the majority of the Court of Appeals, the state’s highest court, Chief Judge Charles S. Desmond wrote:
"Not only is this prayer not a violation of the First Amendment (no decision of this or of the United States Supreme Court says or suggests that it is) but a holding that it is such a violation would be in defiance of all American history, and such a holding would destroy a part of the essential foundation of the American governmental structure. ... That the First Amendment was ever intended to forbid as an ‘establishment of religion’ a simple declaration of belief in God is so contrary to history as to be impossible of acceptance."
However, there was a glimmer of hope in Judge Marvin R. Dye’s dissenting opinion. “The inculcation of religion is a matter for the family and the church,” he wrote. “In sponsoring a religious program, the State enters a field which it has been thought best to leave to the church alone. However salutary the underlying purpose [the school prayer will] lead to a gradual erosion of the mighty bulwark erected by the First Amendment.”
Engel said he never lost faith that his cause would prevail before the U.S. Supreme Court.
Following the advice of his attorney, William J. Butler, the plaintiffs stayed away from the oral argument. “Our attorney said it was better that we not attend because our presence might cause a great distraction. He thought that we should just let the Court decide on the merits.”
Supreme Court decision
On June 25, 1962, the U.S. Supreme Court ruled 6-1 (Justices Felix Frankfurter and Byron White did not take part in the decision) that the prayer practice violated the establishment clause of the First Amendment. Only Justice Potter Stewart dissented.
“The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself,” Justice Hugo Black wrote for the Court majority. “It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.”
Black’s opinion focused on history: “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.”
Engel was delighted with the court’s opinion. “Hugo Black really hit the nail on the head,” he said. “The opinion said that students could pray in school, read the Bible in school and even proselytize as an individual in school, but when the state or agent of the state enters the arena to propose, promote or conduct prayer, that clearly violates the establishment clause. I thought he really nailed it.”
Engel said Stewart’s dissenting opinion didn’t bother him: “I never gave it much credence.”
Stewart noted early examples of religion in government, such as “God save the United States and this Honorable Court”; presidents asking for God's protection God in their inaugural addresses; “In God We Trust” on coins. The justice said he didn’t think allowing schoolchildren to pray in the manner suggested established a religion.
Engel remains a student of the Constitution with a near-encyclopedic knowledge of Supreme Court case law on religious liberty cases, recalling dates and Supreme Court voting alignments in particular cases.
When asked about moment-of-silence laws, involving a mandatory pause for reflection in public schools, he responds: “If it looks like a duck and walks like a duck, it’s a duck.”
“You can disguise it anyway you want — and there seem to be new disguises every day in this area, such as school vouchers — but it all comes down to the same thing,” Engel said. “There are many who would love to stick their hand in the public till because they feel imposed upon and feel they are taxed unjustly for public education that they don’t participate in. I understand that, but I still pay for a lot of things that I think are unjust like the Vietnam War and the war in Iraq. I still pay school taxes even though my children are long gone from the public schools.”
Engel does not think much of efforts to incorporate intelligent design alongside evolution in science classes: “Intelligent design is a contradiction in terms. It is not science.”
But he doesn’t feel nearly as strongly about the recitation of the Pledge of Allegiance in public schools.
“I don’t think this is the same as prayer in school,” Engel says. “I can understand people being upset either way but I wouldn’t go to war over it.”
When asked whether he was proud to be part of legal history, he said he still questioned whether he was right to involve his family in such a controversial topic.
“You don’t do something like this alone,” he said. “You involve your own family and I doubted whether I had the right to do that.
“But, I am proud of one thing — that I fought the good fight.”