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Allan Powell: Court decisions show why election matters

August 30, 2012|By ALLAN POWELL

It is a safe bet that many Americans are unaware that two legal milestones are reaching their 50th birthday: Engel v. Vitale, which brought an end to government sponsored prayers (1962) and Griswold v. Connecticut (1965) which struck down the law that banned artificial forms of contraceptives were decided by the Supreme Court. Both decisions were — and remain — very controversial topics of conversation.

Engel v. Vitale became a case when the Supreme Court was called upon by five New York citizens to determine if a state written prayer could be a required activity in public schools. This very brief prayer was written by the New York Board of Regents and was said to be nondenominational. “Almighty God, we acknowledge our dependence upon thee and we beg Thy blessings upon us and our parents, our teacher and our country.” While some students prayed, others remained silent and others objected.

On July 3, 1962, the Supreme Court handed down a 6-1 decision in favor of the plaintiffs. The absence of two justices accounted for the short vote. Speaking for the majority, Justice Hugo Black affirmed that, “We think that the constitutional prohibition against laws respecting an establishment of religion 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. When the power, prestige and financial support of government are placed behind a particular religious belief, the indirect coercive pressure upon religious authorities to conform to the prevailing officially approved religion is plain.”

While there is still a widespread belief that prayer is appropriate in public school classes and at sports events, there is a growing understanding that, in a pluralistic society, it is problematic to impose the doctrines of a majority faith on members of other persuasions.

Griswold v. Connecticut was the result of an orchestrated effort to test the constitutionality of an 1879 Connecticut law that banned artificial forms of contraceptives. In 1961, Estelle Griswold and Dr. Charles L. Buxton opened a clinic in New Haven to offer birth control information. Estelle Griswold was arrested when the police raided their office and set the stage for the legal contest. In 1965, the Supreme Court, in a 7 -2 decision, ruled in favor of the plaintiffs.

Justice William O. Douglas wrote the majority opinion. In part, it reads: “In view of the zone of privacy created by several fundamental guarantees, would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights.”

This decision is still stoutly contested by many who are opposed to the use of birth controls. Recently there was an attempt to pass a law in Arizona that would have permitted employers to exclude contraceptive coverage to their employees if they had religiously based objections to such a policy. This strategy and other hastily contrived restrictions on a woman’s right to privacy is the brainchild of male dominated legislatures that are unyielding defenders of a male’s right to self determination.

Male-dominated churches have the right to claim what they wish as an article of faith, but not to impose these convictions as an article of law. What is viewed as a breach of morality by one may well be a critical need for another’s very health or life.

These two historic decisions are what should be expected in a pluralistic society. The current swing to the right will have its momentary burst of enthusiasm but it will be hard to repeal what was created by an enlightened sense of fair play.

It would, however, be a mistake to take these two decisions as safe from radical revision. Conservative politicians, wishing to appeal to their base, are actively at work to undo both of these decisions. This would be accomplished by the appointment of one more conservative justice to the Supreme Court. This election may be more important for the court we get than for the president we get.


Allan Powell is professor emeritus of philosophy at Hagerstown Community College.

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