Washington Law Review


Could it be that the protests provoked by Engel were engendered not so much by what the Court held or by what Mr. Justice Black wrote as they were by the absolutist, all-encompassing sweep of Mr. Justice Douglas' concurring opinion? After all, Mr. Justice Douglas had been the author of "accommodations" for religion" and he had quite clearly and forthrightly proclaimed that "We are a religious people whose institutions presuppose a Supreme Being." But now in Engel, as though there were more fundamental questions which demanded more fundamental answers, Mr. Justice Douglas suddenly "grew half sick of shadows" and gave sun-bright answers for just about all our "religion problems" and unequivocal castigation of all religious customs which are even tenuously related to government. Wrote he, It is customary in deciding a constitutional question to treat it in its narrowest form. Yet at times the setting of the question gives it a form and content which no abstract treatment could give. The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing. Nevertheless, I think it is an unconstitutional undertaking whatever form it takes.

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