Abington School Dist. v. Schempp

TOWNSHIP, ABINGTON DISTRICT OF SCHOOL SCHEMPP PENNSYLVANIA, et al. al. et June 1963.* February 27-28, 1963. Decided Argued No. 142. III, General of John D. Killian Attorney Deputy H. III the cause Philip Ward argued Pennsylvania, on the brief were appellants in No. 142. With them for Stahl, Percival David Attorney Pennsylvania, General Bhoads. R. Bieder C. Brewster III Henry Sawyer appellees for W. argued cause H. Wayland Elsbree. him was No. on the brief With .142. Kerpelman argued J. and filed a Leonard the cause for in No. 119. petitioners brief George Baker, Burch Jr. Francis B. W. argued in No. 119. them on the respondents cause for With B. Z. Philip Nelson Seidman brief were Altfeld. Murray al., * Together al. with No. et et v. Curlett Consti tuting City, Board School Baltimore Commissioners on argued Appeals Maryland, February certiorari to the Court 27. Finan, Attorney Maryland, B.

Thomas General "as amicus argued Maryland, the cause the State affirmance in No. 119. him on the curiae, urging With Sweeney, P. and F. brief James Garland Robert were of Maryland. General M. Attorneys Assistant Richmond Pickrell, Flowers, of Attorney Alabama, General Robert Attorney Bennett, Arizona, Attorney General of Bruce Ervin, Arkansas, Attorney General of W. Gen- Richard Eugene Cook, Florida, Attorney eral of of General Georgia, SJvepard, Attorney Allan G. General of Idaho, M. Ferguson, Attorney William of Kansas, General Jack P. Qremillion, F. Attorney Louisiana, General of Frank Hancock, E. Attorney Maine, General of Joe T. Patter- son, Attorney Maynard, General of Mississippi, William Attorney Sills, General Hampshire, New Arthur J. Attorney Hartley, General New E. Jersey, Earl Attor- ney General of New Mexico, Bruton, Thomas Wade Attorney General Nugent, North J. Carolina, Joseph Attorney General of McLeod, Rhode Daniel Island, R. Attorney General Farrar, South Carolina, Frank R. Attorney General Dakota, George South F. McCanless, Attorney General of Tennessee, joined brief on behalf of their respective States, as amici curiae. curiae,

Briefs of amici urging affirmance in No. reversal No. Abram, were filed by Morris B. Edwin Lukas, Roth, J. Burnett Forster, Arnold Hart- Paul man, Theodore Leskes and Sol Rabkin for the American Jewish et al.; by Committee Leo Pfeffer, H. Lewis Wein- stein, Wald, Albert Polier, Shad Samuel Brenn- Lawrence glass and Theodore R. Mann for Synagogue Council of America al.; et and by Rosen, Herbert A. Wolff, Leo L. Morris Ernst and F. Nancy Wechsler for the American Ethical Union. opinion of the delivered Court.

Mr. Justice Clark scope consider the upon are called again we Once to the United of the First Amendment provision shall “Congress which declares that' States Constitution religion, or- an establishment respecting make no law com- . . . .” These the free exercise thereof prohibiting context state present the issues panion cases readings day with begin that ' each requiring schools action under raising questions basic Bible. While from the permit cases different factual slightly situations, -the First history of the light In treatment. joint applying interpreting and of our Amendment cases at issue practices we hold that the requirements, its under the requiring laws them are unconstitutional through States applied to the Clause, Establishment 'as Fourteenth Amendment. I. No. 142. The Common

The Facts Each Case: 15-1516, as 24 Pa. Stat. Pennsylvania law, § wealth 1960) 17, 1959, (Supp. Dec. amended, Pub. Law' 1928 Holy Bible “At least ten verses from the requires opening of each read, comment, without at shall be day. Any child shall school on each school public attending Bible such reading, from such Bible excused request parent written of' his reading, upon the or. wife and Schempp family, The husband and guardian.” children, brought enjoin of their three suit to enforce two statute, contending rights of the under the ment their Amendment to-the of the United Fourteenth Constitution and will to be are, been, continue violated States have as viola unless this statute be declared unconstitutional They Amendment. provisions tive of these First sought appellant district, school wherein the enjoin attend Schempp school, children its officers Superintendent of Public Instruction of the Common- wealth continuing readings conduct such and reci- Prayer tation of the public Lord’s schools of the-dis- pursuant trict to the statute. A three-judge statutory District Court for the Eastern Pennsylvania District of held that the statute is violative of the Establishment Clause of the First Amendment as applied to the States by the Due Process Clause Amendment Fourteenth appropriate directed that injunctive relief issue. 201 Supp. F. appeal by 815.1 On District, its officials and the Superintendent, under § 28 U. S. C. we noted probable jurisdiction. 371 U. S. 807. appellees

The Edward Lewis his Schempp, wife Sid- ney, and Roger their children, and Donna, are Unitarian faith and are members of the Unitarian Church in Germantown, Philadelphia, Pennsylvania, they, where as well as another son, Ellory,' regularly attend services. The latter originally was a party having but graduated from system the school pendente lite was vol- untarily dismissed from the action. The other children attend the Abington High Senior School, which is a school operated by appellant district.

On each day school Abington at the High Senior School between 8:15 and a. m., 8:30 while pupils are attend- ing their home or advisory rooms sections, opening exer- brought The prior action was in 1958, to the 1959 amendment authorizing 15-1516 § a child’s nonattendance the exercises upon parental request. three-judge court held the statute and practices coihplained the of unconstitutional under both the Estab lishment Clause and the Free Supp. Exercise Clause. 177 F. Pending appeal by to this Court the district, school the statute was amended, so and we judgment vacated the and remanded for further proceedings. three-judge U. S. 298. The granted same court appellees’ motion to pleadings, Supp. 518, amend the F. held a hearing on pleadings the amended and rendered the judgment, 201 Supp. 815, F. appeal from which is now taken. The exer- pursuant the statute. cises are'conducted building in the school cises are broadcast into each room through system and are con- an intercommunications supervision, by teacher students ducted under the workshop. attending the school’s radio and television morning gather students from course each Selected this exercises, in workshop, the school’s studio the readings include' one of the students of 10 verses the by in Holy Bible, building. room the This broadcast each by Prayer, is followed the recitation of the Lord’s likewise by th' but- system, over intercommunications also the , studer classrooms, m the various who are asked stand join repeating and the in prayer unison. The exer- are closed with flag pertinent cises the salute and such are of announcements as interest to the students. Par- ticipation opening by the exercises, directed the statute, voluntary. The reading student the verses may from the Bible passages select the read chooses, although version only by he copies furnished the school are King James of which version, copies were circulated to each by teacher district. the school been, During period which the exercises have con- King ducted James, Douay Revised Standard versions the Bible have been as well as used-, , Holy Scriptures. Jewish prefatory There are no no statements, questions asked or solicited, no comments explanations or made interpretations and no given during the parents exercises. are ad- students vised that the student himself from the class- absent room or, should he elect to remain, not participate exercises. appears

It from the record schools not having an system intercommunications the Bible reading recitation of Prayer the Lord’s were conducted and who chose the text verses teacher,2

home-room them in rotation or read them herself had students read standing reci- by This was followed by or volunteers. Pledge of together with the Prayer, of the Lord’s tation closing Flag in unison and a Allegiance by the class of interest. of routine school items announcement and children Schempp trial Edward At first by a purveyed specific religious as to doctrines testified contrary to the “which reading of the Bible were literal familial they and to their religious beliefs which held testi- F. The children teaching.” Supp. were they that all the doctrines to which referred fied part at times as the exercises. read them various at trial that Schempp Edward testified the second he Roger Donna having had considered and excused for against but decided it attendance exercises including that children’s reasons, his belief several with their teachers and classmates would be relationships adversely affected.3 upon imposes penalty re The statute as amended no a teacher obey

fusing However, its remains to be seen whether mandate. refusing employment one could have his contract terminated 1960) (Supp. “wilful violation of laws.” 24 Pa. Stat. school 11-1122. § testimony trial his court summarized as follows: Schempp, father, “Edward care- children’s testified that after decided, Roger ful consideration he had that or he have should morning Among Donna excused from these attendance at ceremonies. following. thought his reasons were the He he his chil- said that ’ dren would ‘labeled as “odd balls” their before teachers and Roger’s every day; children, classmates school that like Donna’s classmates, lump particular religious were liable ‘to all difference[s] ’ religious objections, [together] today “atheism” communism,’ with word ‘atheism’ is often connected ‘atheistic ‘very ‘anti-Red,’ bad’ such as connotations, has ‘un-American’ or immorality. possible Schempp pointed with overtones of Mr. out morning rapid due to following the events exercises succession, reading, Flag Salute, the Bible the Lord’s Prayer, testimony appellants was introduced both Expert testimony first was sum- appellees trial, at the which by the trial court as follows: marized Grayzel “Dr. Solomon testified that there were Scrip- marked between the Jewish Holy differences Holy Bible, tures and the most obvious Christian was absence of the New in Testament Scriptures. Grayzel the Jewish Dr. testified Holy portions that of the New Testament were offensive Jewish from the that, standpoint to tradition faith, concept Jewish of Jesus Christ as the Son was He ‘practically blasphemous.’ God cited in New which, assertedly, instances Testament only bring were sectarian nature but tended to gave the Jews into ridicule or scorn. Dr. Grayzel expert as his that opinion such material from the chil- explained New Testament could be to Jewish way such as harm dren to do no to them. But if portions of New Testament were read without explanation, they could be, specific experi- his with Dr. Grayzel been, ence children had observed, psychologically harmful to the child and caused had force divisive within the social media of the school.

“Dr. Grayzel also signifi- testified that was there cant regard difference in attitude with to the respec- tive Books of the Jewish and Christian Religions that Judaism special significance attaches no to the per reading of se and that the the Bible Holy Jewish Scriptures are source materials be studied. But Grayzel Dr. did many portions state that New, excusing the announcements, his reading children the Bible probably they would mean that hearing would miss the announce- important ments so Roger to children. He testified also that if Donna reading they were excused from Bible would have stand in the hall outside their ‘homeroom’ and that this carried with it the imputation punishment for bad Supp., conduct.” 201 F. at 818. passages Old, Testament contained

as well literary and moral value. great for the Weigle, expert A. an witness “Dr. Luther in some detail as to the reasons defense, testified developing King employed methods for and the Versions of the and the Standard James Revised Weigle Dr. stated examination, direct Bible. On later Bible was non-sectarian. He stated non-' phrase ‘non-sectarian’ meant him Weigle faiths. Dr. within the Christian sectarian Holy definition of Bible would stated that his also stated Holy Scriptures, include the Jewish but ‘Holy complete Bible’ would not be without that the Testament. He stated that the New Testa- the New message of In his ‘conveyed ment the Christians.’ Holy of the exclu- opinion, reading Scriptures the sion of the New Testament would be a sectarian was of practice. Weigle Dr. that the Bible ^tated great literary historical and This is moral, value. by all is the parties conceded the and also view Supp. 398, the court.” 177 F. 401-402. court, striking

The trial down and the practices the specific findings statute made of fact requiring them, that Abington High children’s attendance at School the Senior reading and the compulsory practice verses compelled by is also It found the Bible law. also that: reading comment, without verses,

“The the even possesses a devotional and character constitutes in effect a observance. The de- morning nature of the exer- votional by all fact that apparent cises is made the more immediately a reading by the Bible is followed recital pupils Prayer. The in unison the' the Lord’s all pupils, theoretically pupils, fact that some at the exercises might be excused.from attendance mitigate does not obligatory nature the cere- mony . . Section 1516 unequivocally . . . . re- quires every day the exercises to be held school every school in the Commonwealth. The exercises buildings perforce are held the school are con- ducted by authority under the local school during authorities and school sessions. Since the reading statute requires ‘Holy Bible,’ document, Christian . . practice prefers . the. religion. Christian The record demonstrates ‘that it was the intention of . . . Commonwealth . . . religious ceremony introduce into the schools the Commonwealth.” 201 P. Supp., No. 119. In 1905 Board of School Commissioners City adopted pursuant Baltimore a rule to Art. 77, § of Maryland. pro- Annotated Code The rule holding for the of opening vided exercises in the schools of city, consisting primarily of the “reading, without comment, chapter of a in the Holy Bible use and/or Prayer.” of the Lord’s petitioners, Madalyn Mrs. Murray son,- and her J. Murray III, William are both professed Following atheists. attempts unsuccessful respondent have the school board rule, rescind the this suit compel was filed for mandamus to its rescission and alleged cancellation. was It was a William student in public city a school of the and Murray, Mrs. mother, his was a taxpayer therein; that it was the practice under each, reading on morning have school from rule King James version of that at petitioners’ the-Bible; insistence the rule was to permit amended4 children to provides rule The as amended as follows:

“Opening school, Exercises. collectively Each either classes, or in opened by reading, shall be comment, without chapter of a Holy Prayer. Bible the use of the Douay Lord’s The and/or by pupils prefer version be. used those who Appropriate it. request parent on of the and be excused the exercise pursuant thereto; had been excused that William inwas violation of the nevertheless the rule amended as petitioners’ rights religion “to under the First freedom and of “the Fourteenth Amendments” and violation principle of and con- separation state, church between ,” particularized tained therein. . . petition The beliefs, petitioners’ as rule, atheistic and stated that practiced, rights. .violated their"

“in it religious liberty placing threatens their a premium against on as non-belief and sub- belief jects their rule of the freedom of conscience majority; pronounces belief God as the source of all moral spiritual values, equating and these values thereby sinister, with renders values,, suspect your alien and the beliefs and ideals of Peti- tioners; promoting question doubt and of their good good morality, citizenship faith.” respondents court, recog demurred the. trial nizing that pleaded, the demurrer admitted all well facts Maryland sustained it without to amend. The leave Appeals affirmed, Court of majority justices four holding the exercise not in "violation of the First and Amendments, justices dissenting. Fourteenth with three granted Md. 179 A. 2d 698. We certiorari. S. 809. U.

II. closely It is true that has been identified with history, government. Engel our As we said in Vitale, history S. -434 “The of man is U. inseparable from history religion. And . . . since patriotic part general opening exercises be held should Any par- exercise of the school or class. child shall be excused from ticipating opening attending opening in the exercises or from upon request parent guardian.” exercises of his written .the devoutly many people have beginning history of that by prayer things wrought are than' that ‘More believed Clauson, In Zorach of.’” world this dreams recognition to the gave specific we U. S. whose insti people are a proposition that “[w]e Being.” a The fact that the presuppose Supreme tutions there Founding devotedly that was Fathers believed of man were rooted rights that unalienable God and writings, in their from the clearly in Him is evidénced This Compact the Constitution itself. back Mayflower ground today through in our evidenced life Presidency oaths of office from the continuance our. help the Alderman of the final mé supplication, “So God.” Congress each provides through Likewise House its Chaplain opening an prayer, and sessions this Court open are declared a short ceremony, crier final phrase grace which invokes the Again, of God. are such military there in our manifestations where forces, those our citizens who are under the restrictions of military service wish to engage voluntary worship. only year Indeed, last an official survey country of the indicated that our people have church member 64% ship, Bureau of the S. Census, Department U. of Com merce, Statistical o the Abstract f United (83d States ed. 1962), 48, while than less profess religion no whatever. 3% Id., p. It can be truly said, therefore, that today, in the beginning, our national life reflects people who, the words of Madison, are “earnestly pray ing, duty as ... bound, the Supreme Lawgiver . Universe . . guide them into every measure be worthy of his . . [blessing . Me .]” morial and Against Remonstrance Religious Assessments, quoted in Everson v. Board Education, U. S. (1947) 71-72 (Appendix to dissenting opinion of Rut J.). ledge, so has been however, say, not to

This is that government and history our identified with in our strongly imbedded is not likewise as freedom telling per of the most Nothing life. but private by our in suffered experiences religious persecution sonal Education, at supra, Board see Everson v. forebears, of liberty in of planted our belief 8-11, could have It heritage. is true deeply more our opinion colonists, by not realized liberty frequently this was ties to readily accountable their close but this is of Madison and Country.5 However, the views Mother incor Williams,6 came to be Jefferson, preceded by Roger. Federal Constitution but porated only not likewise worship of of our States. This freedom those most country people in a whose came indispensable was them a brought earth and with quarters the four Today authorities list 83 diversity religious opinion. membership exceed separate religious bodies, each with innumer ing 50,000, existing among people, our as well as cit., groups. Census, op. Bureau of the able smaller supra, 46-47. at.

III. in Minor Board years ago Almost hundred v. Cincinnati,7 Judge Alphonso Taft, Education father original eight There were established churches in at least colonies, degrees religious support late various in others as Revolutionary Engel Vitale, supra, 10. as the War. n. See many goes ship sea, many “There with hundred souls picture ship, common, whose is of a one weal woe and is a true commonwealth, society. combination, or human or It hath fallen Turks, sometimes, Papists Protestants, out Jews and both ship; upon supposal, be embarked in one I affirm that liberty pleaded upon for, I turns these two all the of conscience ever hinges, Papists, Protestants, Jews, or Turks be forced that none of the compelled ship’s prayers worship, from their to come to the or nor particular they any.” prayers worship', practice if own February opinion Superior Cincinnati, is Court reported published title, but is- under the in the Com- The Bible Justice, unpublished opinion an of the revered Chief people stated the of our as to freedom as ideal one equality law,

“absolute before the all religious- opinions and sects ..... . . . . government and,

“The neutral, protecting all, while it prefers none, disparages and it none.” examining Before this position “neutral” in which the Establishment and Free Exercise of the First Clauses place Amendment our Government it is well that we dis- cuss the reach of the Amendment under the cases of this Court.

First, decisively this Court has settled that the.First “Congress Amendment’s mandate that shall make no law an respecting establishment of religion, or prohibiting the free exercise thereof” has wholly been made applicable States, by the' the Fourteenth Amendment. Twenty- ago years Connecticut, three in Cantwell v. 310 U. S. 296, (1940), Court, 303 this through Mr. Justice Roberts, said:

“The fundamental concept of liberty embodied that Amendment embraces the liber- [Fourteenth] guaranteed by ties the First Amendment. The First Congress declares that shall Amendment make no law an respecting establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amend- (Cincinnati: mon 1870). Judge Schools Robert Clarke & Co. Taft’s views, expressed prevailed dissent, appeal. See Board Edu- on Minor, cation Cincinnati v. 211, 23 Ohio St. 253 in which Supreme the Ohio held Court that: great

“The bulk of human affairs and by any human interests is left government enterpiise free to individual and individual action. Reli- gion eminently interests, lying one of these outside the true and legitimate province government.”

216 as states legislatures ment has rendered 8 such ...”

incompetent Congress to enact laws. series of cases since Cantwell In a has re the Court so now. peatedly do doctrine, reaffirmed that we Murdock (1943); Pennsylvania, 105, v. S. 108 U. Education, ex rel. supra; Everson Board Illinois v. Education, 333 McCollum Board 210-211 U. S. v. of. Mary Clauson, supra; Zorach v. McGowan v. (1948); land, Watkins, Torcaso v. S. (1961); 367 U. U. S. Vitale, Engel supra. (1961); the con-

Second, rejected unequivocally this Court has gov- only forbids tention that Establishment Clause religion Al- preference one over another. ernmental Everson, supra, years ago at Court said most Federal state nor Government either “[n] pass set can laws which aid up can a church. Neither religions, prefer aid all or one over religion, one agreed: Jackson, dissenting, another.”. And Justice Mr. proposition no answer to . . . “There is to our freedom Amendment effect of form of every propagation was to take Constitution things of the realm of which could religion out indirectly be made business directly part taxpayers’ in whole or thereby supported This first in the expense. . . . freedom was Bill minds; Rights was first the forefathers’ because it strength is it and its was set forth absolute terms, Id., at rigidity.” its

8 Application of Amend to the States of other clauses the First ment obtained even before Cantwell. Almost 40 years ago in the York, Gitlow v. New opinion of U. S. Court purposes present Justice “For we do as Mr. Sanford said: and speech press protected by sume that of and of the freedom are —which by Congress among abridgment the First Amendment from —are personal rights protected by fundamental and 'liberties’ the due by process impairment clause of the Fourteenth Amendment the States.” Frank- by Justices Rutledge, joined Justice Mr.

Further, declared: Burton, Jackson furter, was not to purpose Amendment’s “The [First] single of a official merely strike at the establishment rela outlawing only or a formal religion, creed sect, England as had and some of the prevailed tion such all such rela Necessarily uproot colonies. it was separat was tionships. object But the broader than ing church and narrow It was to state this sense. complete of permanent create a separation spheres religious activity authority of civil by forbidding comprehensively every form aid religion.” or for support Id., at 31-32.

The same firmly conclusion has maintained ever been McCollum, time, since that supra, see Illinois ex at rel. pp. Maryland, 210-211; McGowan supra, 442-443; at Watkins, Tor caso v. at and we supra, 492-493, reaffirm it now.

While parties cases none either these has questioned these basic Court, conclusions both long established, recognized have been and con- sistently reaffirmed, his- question others continue their tory, logic efficacy. light Such in the contentions, interpretation Court, consistent cases of this seem entirely only untenable and of value academic exercises.

IV. The interrelationship of. the Establishment and the Free Exercise Clauses was first touched Jus- upon Mr. Connecticut, tice Roberts the Court in Cantwell v. supra, 303-304, where was said that “inhibition their of legislation” had

“a aspect. double On the one it forestalls hand, compulsion by law acceptance creed practice any form worship. Freedom of religious to to adhere such

conscience freedom as individual worship or organization form On the by law. restricted choose cannot be free exercise safeguards other it hand, em- the Amendment religion. form chosen Thus and free- to concepts, believe braces two —freedom but, in the nature dom first is absolute to act. The cannot be.” things, the second dozen, in Everson v. Board years A half later Edu- cation, through Court, at this Me. Justice supra, 14-15, Amend- “scope that of the First Black, stated designed suppress” forever the estab- ment ... was to prohibition, or the free lishment exercise short, In the Court held that Amendment thereof. “requires to be a relations with the state neutral its groups religious non-believers; believers it adversary. does require not the state to be their handicap State is no more be used so power religions Id., favor than is to them.” Mr, And Justice declared that Jackson, dissent, organized schools are

“on that secular education can be iso- premise teaching lated from all so that the school temporal knowledge can inculcate all needed also lofty neutrality maintain strict and as to religion. has assumption after the individual been is that will worldly instructed wisdom he be better fitted Id., to choose his at 23-24. religion.” Moreover, dissenters, speaking through all of the four Mr. agreed Justice Rutledge, deny

“Our ... does policy constitutional value necessity training, teaching or observance. their Rather it secures free exercise. deny But end it does that the state can under- take degree. or sustain them in form or For this activity, as distin- sphere reason the liberties, intellectual has from the secular guished „as and, the state protection given been the twofold in'per- or'aid perform can it forbid, cannot neither prohibition The dual forming the function.' Id., altogether private.” at that function makes to reconsider later was asked Only year the Court one in v. repudiate and of these doctrine cases McCollum “historically argued that Board Education. It was only govern forbid Amendment intended to was the'First . . In religion over another . . preference ment one distinguish our hold they ask that we or overrule addition in the Fourteenth Amendment ing Everson case that religion’ clause of the First made the ‘establishment of against applicable prohibition Amendment Mr: S., Court, 211. The with Justice States.” U. . “accept unable to either dissenting, Reed alone was Frankfurter, Ibid. Mr. Justice these contentions.” Rutledge Burton, and wrote a joined by Jackson, Justices in scholarly concurrence very comprehensive and “[separation requirement he said that is abstain fusing from functions of Government Id., all sects, merely equally.” treat at 227. them he that: Continuing, stated prohibited . . . the Government

“the Constitution becoming common to all embroiled, however innocently, the destructive conflicts of history country which the of even this records some Id., pages.” dark at 228. Clauson,

In in Zorach supra, v. Justice Mr. Douglas for the Court reiterated: slightest

“There cannot be the doubt that the First Amendment the philosophy reflects that Church and separated. State should be far as And so interfer- religion ence with ‘free exercise’ of and an concerned, separa- are ‘establishment’ complete unequivocal. tion First must scope permits coverage Amendment within the its prohibition no is absolute. The First exception; in every does not Amendment, however, say that respects separation and all there shall be a Church Rather, studiously manner, State. defines no specific ways, which there shall be concert on dependency or union one the other. .That S., the common sense of the matter.” U. at 312. Maryland And then 1961 in McGowan Torcasov . Watkins each of these cases was discussed and approved. McGowan, for a Chief Justice Warren Court unanimous on this said: point, in “But, Amendment, the First form, its final did congressional not bar a simply establish- enactment ing church; it all a forbade laws an respecting estab- religion. lishment given Thus, this Court has of Amendment a interpretation ‘broad light ... history of its was designed the evils it forever to suppress. . . .’” 366 atS.,U. 441-442.

And Mr. Torcaso, for the Court in with- Black Justice out dissent but with Justices Frankfurter and Harlan concurring the result, language: used this repeat again reaffirm “We that neither a State nor Federal Government can constitutionally force a person profess ‘to a belief or in any disbelief religion.’ Neither can pass constitutionally laws or impose requirements which aid all religions against as non-believers, and neither can aid religions those aon based belief the existence of against God as religions those founded on different beliefs.” 367 S.,U. Engel Vitale,

Finally, only last year, prin these ciples were so universally recognized that the Court, with dissent single and over sole the citation of a case out reaffirmed The Court them. Stewart, Mr. Justice pro in “New York’s prayer found the 22-word used as blessings of God’s gram of classroom invocation daily Regents’ . . . a reli prescribed prayer [to. be] is gious S., at 424. It held that “it activity.” 370 U. government part compose no official the business American to recite prayers any group people by gov carried religious program a of a on part discussing In Id., at 425. reach ernment.” First and Free Exercise Clauses of the Establishment Amendment Court said: in certain

“Although these two instances clauses gov- overlap, forbid two different kinds of they quite upon freedom. ernmental- encroachment Exercise unlike the Free Clause, Establishment direct depend any showing not Clause, upon does by the governmental compulsion and violated is an official enactment of laws establish non- operate directly whether laws to coerce those is observing individuals or not. This not to say, course, officially prescribing particular laws form of do involve coercion worship power, prestige and such individuals. When the government support placed financial behind pres- indirect particular belief, the coercive pre- to conform to the upon sure minorities plain.” Id., vailing officially approved religion is 430-431. found “first the Court that the

And further elaboration purpose most the Establishment and immediate [of of government belief a union rested on the that Clause] religion destroy government degrade and and to tends religion.” at 431. When the Court Id., government, particular form of religion, with one allies itself said, disrespect inevitable is that incurs hatred, result “the contempt and who contrary beliefs.” even those Ibid. held “neutrality” V. The wholesome which this cases Court’s speak recognition teachings stems from thus a of the history powerful might that or about groups bring sects governmental fusion of a con functions or or dependency upon cert one other the end support official or would State Federal Government placed behind the of one or of all tenets orthodoxies. prohibits. This the Establishment Clause And a further neutrality Clause, reason for is found in the Free Exercise recognizes of religious teaching the value training, and, right every observance more particularly, person freely his choose own course with reference thereto, any free of compulsion the state. This guarantees. the Free Exercise Clause Thus, we have seen, may the two clauses overlap. As we indi have cated, the Establishment con directly Clause has been eight sidered Court past years this times score of with and, only one dissenting Justice on the it has point, consistently held that legislative the clause withdrew all power respecting religious belief or expression thereof. follows:, The test be stated as purpose what are the primary effect of the If enactment? either the advancement inhibition of then enact scope legislative ment power exceeds the as circum . by the say Constitution That is to with that to scribed stand the strictures of the Establishment there Clause legislative must be purpose secular and a effect primary neither nor religion. advances inhibits Everson v. Education, supra; Board McGowan Maryland, supra, at 442. Free Exercise Clause, likewise considered many here, times from legislative withdraws state power, exertion of federal, the restraint on the free exer- in religious liberty religion. is to purpose Its secure cise by invasions thereof civil prohibiting any by the individual in a case for free exercise authority. necessary Hence it is of the as it coercive effect enactment one to show the religion. against him in the his operates practice is viola- apparent clauses between the two distinction —a on coercion predicated tion of the Free Exercise Clause not be so need Establishment Clause violation while the attended. to the principles Establishment Clause

Applying the requiring the at bar find that the States are cases we day of the school reading opening and at the selection the the Holy from the Bible and recitation verses exercises Prayer in unison. These by Lord’s the students prescribed part are as the curricular activities They by students who law to attend school. required are buildings supervision are held in the school under the in those participation employed teachers with compulsory None other factors, schools. of these than upheld was attendance, present program school 142 has Zorach v. Clauson. The trial found court No. opening religious ceremony such an exercise is with agree was intended the State to be so. We of the finding trial court’s character and the law finding, exercises. Given that the exercises them requiring are violation the Establishment Clause. specific finding is no as to char-

There such acter exercises No. the State contends (as 142) in No. program does the State is an extend all effort its benefits to school chil- regard without to their dren belief. Included says, its secular purposes, promotion within are the of moral contradiction to values, materialistic perpetuation of our of our times, trends institutions teaching of literature. The came up case alleged that petition to a course, on demurrer, read rule had been to under the practice the uniform exercise Bible and that the of the King the version James the therefore, is that answer, short was sectarian. Thé. by the was admitted of the religious character exercise strictly religious, if is not purpose But even its State. without through readings, accomplished is sought to Bible Surely place of the from the Bible. comment, gainsaid, cannot be an instrument of as character recognition pervading religious of the State’s specific permis- rule’s ceremony is evident from the Douay use of the Catholic version sion of the alternative permitting nonattend- as the recent amendment as-well consistent ance at the exercises. None of these factors is here either as with the contention that the Bible is used as a nonreligious inspiration an for moral instrument teaching subjects. for the of secular reference The conclusion follows that in both the laws re- cases quire religious being are con- exercises such exercises rights appellees ducted in direct violation of petitioners.9 required Nor are miti- these exercises gated by may the fact that individual students absent goes saying practices It without that the laws and involved here challenged only by persons having complain. standing can be But requirements standing challenge under state action Clause, relating Establishment unlike those to the Free Exercise Clause, proof particular do not include freedoms are Maryland, supra, infringed. McGowan v. parties at 429-430. The parents, directly here are school' and their who affected children are against practices complaints the laws and which their are directed. surely give parties complain. standing These suffice to interests Engel Vitale, supra. Education, McCollum Board See v. Cf. v. supra; Education, supra. Compare Everson Board Doremus v. v. Education, Board 342 U. S. 429 which involved the same presented appeal substantive issues here. The was there dismissed upon graduation of the school child involved and because of the appellants’ standing taxpayers. failure to establish furnishes for that fact request, upon parental themselves unconstitutionality under the a claim of no defense to Vitale, 430. supra, at Engel Clause. See Establishment religious prac- urge that no defense to it is Further, on the relatively minor encroachments may be tices here today is neutrality The breach First Amendment. raging torrent all too soon become trickling stream alarm proper to take “it Madison, in the words and, Memorial on our liberties.” experiment the first Assessments, quoted Against Religious Remonstrance . Everson, supra, at religious exercises are these insisted that unless

It is is established “religion of secularism” permitted a not course that the agree of State schools. We establish, in the sense of affirma- “religion of secularism” a religion, “pre- showing hostility to thus or tively opposing do religion in no over those ferring those who believe who not Clauson, at 314. do supra, We believe.” Zorach v. that decision sense has however, that this agree, might well be said edu- In that one’s addition, effect. study comparative a of complete is not without cation religion relationship and its to religion history of or the certainly may be said of civilization. It advancement the study literary of for its and his- worthy Bible is that the Nothing we have here indicates that said qualities. toric presented of when study religion, of the Bible or ob- such education, may of program a part as of secular jectively First Amendment. consistently with the not be effected categories. fall here do not into those exercises But the exercises, required by the States They are that of the First Amendment of the command violation neutrality, aiding maintain neither strict the Government religion. opposing nor concept of accept neutrality, we cannot the

Finally, require a to a permit State exer- which does of majority with. the consent the of those even cise exer- right to free majority’s the with collides affected, clearly Clause Free Exercise the religion.10 of While cise of free rights deny action to use state prohibits majority it has never meant anyone, a exercise to practice to be- machinery of the State its could use effectively answered Mr. was contention liefs. Such Board Virginia in West for the Court Justice Jackson Barnette, (1943): U. S. Education v. with- Rights was to of a very purpose Bill

“The politi- subjects from vicissitudes draw certain reach beyond them controversy, place to cal legal them and officials and to establish majorities right by the courts. One’s applied to be principles other funda- worship . . . and ... freedom . they vote; rights may not be submitted mental of no elections.” depend on the outcome one, society is an exalted place of our ¿chieved home, on through long tradition of reliance church and citadel the individual inviolable recognize through mind. have come to heart and We gov- power that it is not within the experience bitter its or purpose ernment to invade that whether citadel, advance, or In the oppose, effect be to aid retard. relationship religion, firmly man and between State neutrality. Though to á position appli- committed requires interpretation cation of that rule of a delicate sort, clearly concisely the rule itself is stated in the Applying words the First Amendment. that rule to cases, the facts of we affirm judgment these the No. 142. presented pass We are not of course with and therefore do not upon military regu service, a situation such as where the Government temporal geographic lates the environment of individuals to a point that, permits voluntary religious unless it services to be con government military facilities, personnel ducted with the use of would engage practice be unable to in the of their faiths. re- the cause is reversed and judgment 119,

In No. Appeals for further Court Maryland manded to this opinion. with proceedings consistent ordered.

It is so Douglas, concurring. Mk. Justice few and add a words opinion I join the Court in explanation. Amend First Exercise Clause the Free

While may not what State written terms ment is t Clause, the Establishmen individual, require freedom, is goal of individual the same serving written in different terms. a can be several achieved

Establishment may one; church can be ways. The state church or church; control the control the state the state possible forms relationship may take one of several arrangement between the two bodies.1 Under working has arrangements typically place all of the church these governs usually and church law such budget, state’s baptism, marriage, separation, at matters as divorce and body members and entire least for its sometimes high politic.2 Education, too, usually priority on the Bates, Religious Liberty: 239-252; Inquiry (1945), 9-14, See An Cobb, Religious Liberty 1-2, IV, V; Gledhill, (1902), America cc. (8 Pakistan, Development of its Laws British and Constitution Commonwealth, 1957), 11-15; Keller, Church and State on the European (1936), 2; Pfeffer, Church, State, Continent c. and Free 2; (1953), Stokes, dom c. I and State in the Church United States (1950), 151-169. cit., op. supra, op. supra, cit., 42-67-; Stokes, 1, Bates, See III n. cit., op. supra, 58-59, 245; Gledhill, 9-11, 1, 128, 192, n. n. 205, 208; Rackman, Emerging 120-134; Israel’s Constitution Drinan, Religious Israel, (Apr. 6, 1963), Freedom in America 456- 228 past were often church interests.3 In schools

list Today church. responsibility made the exclusive the state runs the countries in some state-church re- are often compulsory but exercises schools, agree- or under thé Thus, of some áll students. quired to Holy See he came Franco when made with ment in the regained place its Spain, “The Church power and budget. baptizing on all children national It insists 4 obligatory in has made the state schools.” catechism Establish- arrangements The of all under vice such lending the state is its assistance ment Clause .gain keep efforts and church’s adherents. Under strictly First Amendment a matter for the individual it is belong and his church to what church he will way time, activity how much in the support, belief, give pure Religious Liberty” he will money, to it. “This relationships] ... “declared forms church-state [all oppressions fundamental idea to be of conscience their abridgments liberty of that which God and nature 5 had on every living conferred soul.” In cases these we have no exercise coercive making aimed at the students conform. an- prayers The though they nounced are compulsory, may think some indirect have that effect the nonconformist stu- because participate being dent induced to for fear an if coercion, present, called “oddball.” But that it be 3 op. Stokes, cit., supra, 1, 488-548; II Boles, Bible, See n. The Religion, (2d 1963), 4-10; Rackman, op. ed. Public Schools cit., supra, 2, 136-141; O’Brien, Engel n. at From A Swiss Case The Perspective, 1069; Freund, L. Rev. Muslim Education in Mich. Pakistan, Religious Education West supra5 cit., Bates, op. 18; Pfeifer, op. cit., supra, at 1, n. n. 28-31; Thomas, Foreign of Forces in Spain, Balance Affairs 208, 210. 5 Cobb, op. cit., supra, n. at 2. present regimes shown; the vices

has not been so are different. Clause in two regimes

These the Establishment violate conducting a In State is ways. different each case the holds, as that cannot religious exercise; the Court and, violating “neutrality” required done without be individual, by power the balance between State by has the First church state that been struck lim- Clause is But Establishment not Amendment. conducting reli- itself from precluding the State ited to. its gious employ It the State to also forbids exercises. gives any in or all way church, a facilities or funds that society in our than it would greater strength churches, Thus, present its alone. by relying on members have for that the additional regimes fall under clause must are though in funds, amount, that small public reason Through the being promote to exercise. used people State, being all are mechanism only some finance a exercise that required to' the sensibilities of people want and that violates others. is to way establish institution most effective it; by in the appeals and this truth is reflected

finance their groups public church funds finance reli- Financing strictly a church either its schools.6 is gious' equally its other activities uncon- activities I Clause. stitutional, as understand Establishment activity technically separable be Budgets may for one budgets an in- for others.7 But the institution is living strengthened is separable whole, organism, strengthened proselytizing any department when it is from other than own contributions its members. by cit., supra, Stokes, op. II n. 681-695. See (4th 1956) ed. Handbook 4.8-4.15. See Accountants’ may Such contributions not be the State even made violating degree a minor without the Establishment expended; It public Clause. is not the funds amount . this it is the use which funds case'illustrates, put controlling. are that For the First Amendment does say not some fornls of establishment are al- says “no an lowed; respecting law establishment may of religion” shall be What not done di- made. be rectly done indirectly lest Establishment mockery. Clause become a Brennan, concurring.

Mr. Justice in century a half John ago, Marshall, Almost and a Maryland, enjoined: M’Culloch v. “. . . must we never a constitution we are forget, expounding.” that is 316, duty expound Wheat. 407. The historic to Court’s meaning the' of the Constitution has encountered few demanding more intricate or more that than of the issues relationship between religion public’ and the schools. Since undoubtedly religious people we are “a whose insti- Clauson, tutions presuppose a Supreme Being,” Zorach 313, deep feelings U. S. aspects are aroused when of that relationship injunction are claimed to violate the of the government First Amendment “no that make law respecting an prohibit- establishment of religion, or ing regard the free exercise . . . thereof .” Americans public the as a vital schools most civic for the institution preservation system government. of a democratic It is therefore pro- understandable that the constitutional hibitions encounter their they severest when are test sought to in applied school classroom. Neverthe- less it is this inescapable Court’s to duty declare whether public exercises schools of the States, as those such of Pennsylvania and Maryland questioned here, are in- volvements institutions a kind which offends the First and Fourteenth Amendments. “I above esteem it Locke ventured

When John the business necessary distinguish exactly to things all to religion settle from government that civil 1he other,” and the lie between the one just bounds that thought by which would be anticipated necessity Amendment, but of a First adoption require Framers to defining difficulty, experienced that would be not the sepa- line which is that the “just bounds.” The fact those American life in- the sectarian rates secular with boundary difficulty defining elusive. in a our scheme central paradox inheres precision a firm conviction liberty. our institutions reflect While solemn religious people, we a institutions are those reli- officially involve injunction may constitutional against, or way'as prefer,'discriminate a gion such sectjor religion. Equally Consti- oppress, particular with secular tution those involvements enjoins religious activ- (a) essentially institutions which serve (b) organs religious institutions; employ ities of (c) use essentially purposes; government (cid:127) ends governmental means to serve essentially means suffice. The constitutional where secular would judgment and considered expresses mandate deliberate are that such matters to be left the conscience postulate of the citizen, declares as a basic relation rights government citizen and his between the “the delicacy, in are, nature, peculiar of of conscience their governmental will of gentlest little bear the touch hand . ...”2

I in the of the join fully opinion judgment escape I no from the conclusion that the exer- Court. see 1 Locke, Concerning A Toleration, Letter in 35 Great Books of the (Hutchins 1952), Western World ed. 2. 2 Representative during Maryland upon Daniel Carroll debate proposed Rights August 1789, in Congress, Bill the First Cong. I Annals of in these two cases violate the con- question

cises called gave only reasons we last Term stitutional mandate. The Engel Vitale, finding in the S. New U. impermissiblé an Regents’ prayer York establishment religion, compel judgment practices the same bar. The involvement of the secular with is here; constitutionally is no intimate and it irrele- less vant not the material for composed State has inspirational presently' exercises It should involved. unnecessary our de- holding to observe that does not clare that the hostility First Amendment to the manifests practice teaching only applies prohibi- but religion, incorporated in Bill Rights recognition tions historic needs shared Church and alike. State While is my every religion view involvement of life I unconstitutional, consider the exercises at bar form of clearly involvement which violates the Establishment Clause.

The importance of the deep issue and the conviction with which on views both sides are held seem me to jus- tify detailing length at some reasons for my joining the judgment Court’s and opinion.

I. Thé First abridgment Amendment forbids both the the free exercise of and the enactment laws “respecting an of religion.” establishment The two clauses, although distinct their objectives ap- and their plicability, together emerged from a of' panorama common history. The inclusion of both upon power restraints Congress legislate concerning religious matters unmistakably shows that the Framers of the Amend- First ment were not content to protection rest the of religious liberty exclusively upon either “In assuring clause. of religion,” free exercise Mr. Justice said, Frankfurter has sensitive to Amendment were the-First Framers of “the imposi- persecutions history of those recent the then majorities in disability which sectarian with of civil tions in the visited deviation had virtually all of the Colonies unpopular protection This' of conscience. matter the full extent was. not to be however, creeds, governmental of freedom guarantee Amendment’s Virginia, The battle in matters faith.. intrusion Madison had led James hardly years won, four where opposition in successful the forces disestablishment gen- levying Bill Assessment Henry’s proposed Patrick teachers, was a vital of Christian support for the eral tax Mary- McGowan memory 1789.'” compelling 464-465. land, 366 U. S. concern was to Framers’ immediate

It is true that of the official federal church setting up of an prevent long had of the Colonies England and some kind which of the Establishment nothing the text supported. But of the set- prevention that the the view supports Clause to be the was meant an official full ting up of church involvements in' against official prohibitions of the extent said: rightly has been religion. It pro- meant “If framers Amendment of a Congress merely from the establishment hibit why they didn’t may properly wonder ‘church,’ one religion were church and the words so state. That highly seems regarded synonymous improbable, contemporary fact that the particularly view dealing with the sub- provisions state constitutional phrases such as definite used ject establishment . . With sect,’ ‘sect,’ or ‘denomination.’. ‘religious consti- contemporary wording state specific such wording adopted a similar tutions, why was not pro- if its framers intended Amendment the First pro- States were more than what the nothing hibit hibiting?” Lardner, How Far Does the Constitution Separate and State? 45 Am. Pol. Rev. Church Sci. (1951). Plainly, Clause, contempla the Establishment in the Framers, tion of the “did limit not the constitutional proscription to any dated form of state- particular, supported theological had Virginia venture.” “What long what practiced, and Jefferson others Madison, fought to end, government’s was extension civil support iira manner two in which made the degree some and thus interdependent, threatened the purpose freedom each. The of the Establishment Clause was to that legislature assure the national would power not its any exert in the purely service end; not, Virginia would as all of virtually done, the Colonies had make of an religion, religion, object legislation. . . . The Clause Establishment sphere withdrew from legislative of legitimate con competence cern and a specific, but area comprehensive, man’s verity human conduct: belief or disbelief in the of some transcendental idea and man’s expression action or Mary that belief disbelief.” McGowan v. land, supra, (opinion J.). 465-466 of Frankfurter, history

In sum, prior our decisions have interpretation summoned aid of the Establishment permits little doubt its prohibition Clause was designed comprehensively prevent those official in- volvements of religion which would tend to foster discourage religious worship or belief.

But an of history awareness and an appreciation of Founding the aims always Fathers do not resolve problems. specific concrete The question has, us before vigorous example, aroused dispute whether archi tects of the First Amendment —James Madison and Thomas Jefferson particularly prohi —understood against bition “law an respecting establishment' of exercises reach devotional religion” to would Jefferson and Madison It be that schools.3 even permissible although to be have held such exercises — by his admo suggested doubt is case serious in Jefferson’s Testament into the the Bible and against “putting nition judgments when are age an their hands of children at 4 But religious inquiries....” sufficiently matured for (1962); Religion in Education Healey, Public See Jefferson on 16-21; (1961), Boles, Religion, the Public Schools Bible, Religion Education Butts; The American Tradition 119-130; Prayer, 37 N. Y. U. L. Rev. Cahn, Government and On Jefferson, Religious and (1962); Costanzo, Education 981 Thomas Supreme Court, (1959); Comment, Law Law, Public 8 J. Pub. 81 The Schools, Amendment, Religion in-the Public L. First 63 Col. the 73, (1963). Rev. 79-83 full: Jefferson’s caveat was in

“Instead, putting therefore, of Bible Testament into the the age judgments suffi- of at an when their are not hands the children ciently religious inquiries, be for their memories here matured Roman, Grecian, European stored with the most useful facts (Memorial history.” Writings Jefferson of Thomas American 1903), ed.

Compare nephew, Peter Carr, letter his when the Jefferson’s to latter begin study law, in was about the of which Jefferson outlined to suggested private study religion .“[y]our of since reason course of enough object.” this Letter now to to Peter mature examine .is August (1943), 10, 1787, Padover, Complete The Carr, Jefferson any opposed 1058. Jefferson seems to have sectarian instruction at Religion public education, Healey, in Public level of see Jefferson on any (1962), 206-210, 256, The absence of men Education 264-265. elementary projected religious instruction in and second tion quite pro ary significantly explicit schools with Jefferson’s contrasts University Virginia. posals concerning religious instruction at the Knowledge” His draft “A Bill for the More General Diffusion of for 1779, example, some the secular curriculum for outlined in detail public schools, avoiding any religious references to for the while Padover, supra, 1048-1054. later draft of an studies. See at Establishing Elementary Jefferson Schools” which submitted “Act Assembly provided Virginia in 1817 that “no to General practiced .reading, prescribed or incon- exercise, or shall instruction I if view, perfectly way doubt that their even clear one dispositive to the other, supply ques would answer A presented by inquiry, tion these cases. more fruitful practices here me, challenged to is whether seems which consequences deeply threaten those Framers feared; whether, they promote type tend to short, interdependence between state arid designed prevent5 First Amendment was Our task is majestic “the generalities Rights translate the Bill part pattern government conceived liberal eighteenth on into concrete restraints officials century, sistent with tenets of sect or denomination.” Pad- over, supra, upon apparent willingness 1076. Reliance Jefferson’s permit University certain seems, instruction at the there- fore, support elementary to lend little to such instruction in the secondary g., Compare, Corwin, schools. e. A Constitution of Powers 104-106; in a State Costanzo, Jefferson, Secular Thomas Religious Law, Education and 81, Public 8 J. Law Pub. 100-106 (1959). Rutledge’s Cf. Mr. Justice observations in Everson v. Board of Education, (dissenting 1,53-54 opinion). 330 U. S. Fellman, also See Separation Church Summary and State A United States: View, 428-429; Rosenfield, Separation 1950 Wis. L. Rev. Schools, Church and State' in the Public 22 U. of Pitt. L. Rev. (1961), MacKinnon, Freedom? —or Toleration? The Prob lem of Church and 374. One author has State in the United suggested these reasons for cautious States, ^[1959] application Pub. Law history of guarantees of the the Constitution’s to contem porary problems: brevity

“First, Congressional of writings debate and lack of question by any argument on the the framers make historical incon- open question. clusive to Second, serious the amendment was designed practices to outlaw had writing, existed before its but specific there is no practices authoritative declaration of the at which third, religious-freedom was aimed. And most the modern of cases turn on issues which were at perhaps most academic in 1789 and did not exist at all. Public was 1789, education almost nonexistent question and the of education in schools Beth, Theory have been foreseen.” American The of Church and (1958), 88. State century of the twentieth ...

dealing problems with the Barnette, Education Virginia West State Board of S. 624, U. Founding for the of the quest

A too literal advice the issues of these cases seems to me futile upon Fathers First, precise for several reasons: on our and misdirected ambiguous, the historical record is best problem of readily support can be found either side statements ambiguity history understand- proposition. The uppermost problems if we recall the nature able reli- thinking in the the statesmen who fashioned the more gious guarantees; were concerned with far they into, government realm of reli- flagrant intrusions century that our has witnessed.6 While it is gion than the Framers meant the Establishment clear to me prohibit more than the creation of an estab- Clause church such as I England, lished federal existed have that, preoccupation no doubt their with the imminent churches, they gave no question established dis- 6 6 generally, early See for discussion of the efforts for disestablish churches, of the colonial and of ment established the conditions against proponents separation which the of church and con state tended, Story.of Religion (1950), XIII; Sweet, The in America c. Cobb, Religious Liberty IX; (1902), The Rise of in America c. Eckenrode, Separation (1910) ; Virginia Church and State Brant, Nationalist, XXII; (1948), James Madison —The 1780-1787 c. Bowers, Young 193-199; (1945), Butts, The Jefferson The American Religion II; Kruse, Tradition in and Education c. Histori Meaning cal and Judicial Construction of the Establishment of Reli gion Amendment, 65, 2 Washburn L. J. 79-83 Clause ifirst (1962). Compare conception also Alexander Hamilton’s of “the char- religion” difference between a tolerated and established acteristic grounds opposition Quebec latter, his in his remarks on the (Hamilton-ed. 1850), Bill in Works of Alexander Hamilton Compare, contemporary re- 133-138. for the view that evidence design only veals of the Framers to forbid not formal establish- churches, support ment of but forms various of incidental aid to or religion, Lardner, Separate How Far Does the Constitution Church (1951). 112-115 and State? Am. Pol. Sci. Rev. particular whether question

tinct consideration in public the clause also forbade devotional exercises institutions.

Second, greatly of American education has structure changed adopted. In the since the First Amendment was upon contéxt of modern education emphasis public our eighteenth available to all views cen citizens, tury as to an whether exercises are “establish bar. Education, ment” offer little aid to decision. as the it, knew' was in the main eónfineü private Framers schools strictly more often than not under sectarian Only supervision. gradually did control of education pass largely public therefore, officials.7 It would, origins The state-supported modern movement for free precision. fixed England, education cannot be with In the Levellers unavailingly urged platform in their of 1649 the free establishment of primary all, boys. for Brailsford, education or at least for The See English Levellers and the (1961), 534. In the North Revolution n Colonies, exception American educatio almost without under was private sponsorship supervision, frequently and under control of prevailed dominant Protestant sects. This condition after the Revo quarter and century. lution into the first of the nineteenth See generally Mason, II; Moral (1950), Values and Secular Education c. Thayer, Society The (1960), X; Role the School in American c. Greene, Religion Making Testing State: The an Thus, (1941), Virginia’s American Tradition 120-122. colonial Gov Berkeley ernor exclaimed 1671: “I thank there free God are no printing, hope schools nor and I we shall not them have these hundred years; learning for brought disobedience, has heresy, and sects (Emphasis deleted.) into the world Bates, Religious . . . .” Lib erty: Inquiry (1945), An exclusively private The not, control American education did however, quite expectations. Berkeley’s Benjamin survive Franklin’s proposals Philadelphia Academy 1749 for heralded the dawn publicly supported secondary education, although proposal did not bear Yost, Separation immediate fruit.' Johnson See Church and State in United States 26-27. Jefferson’s plans system naught elaborate Virginia school came to proposed after the Elementary defeat in 1796 of his Bill, School among legislators. found little favor the wealthier Bowers, See hardly significant.if nearly the fact was that uni e young exercises in th schools versal devotional provoke today religious did not even Republic criticism; schools are con church-supported private ceremonies in stitutionally unobjectionable.

Young (1945), Jefferson until 182-186. It was not the 1820’s 1830’s, impetus democracy, system under the of Jacksonian that a public really Beard, education took root in the See 1 United States. The (1937), Rise American Civilization 810-818. One force behind development public growing of secular schools have been a tightly private dis satisfaction with the sectarian over educa control Harner, Religion’s tion, (1949), see Place Education 29-30. General burgeoning public systems immediately sup Yet the school did not plant private'institutions,’.Alexis Tocqueville, the old sectarian and de example, for remarked after his tour of the Eastern States clergy.” 1 all education is entrusted to the Democ “[a]lmost racy (Bradley 1945) compare in America And Lord ed: n. 4. Bryce’s observations, century largely later, a half the still denom on higher education, inational character of American 2 The American (1933), Commonwealth 734-735. keep public early century

Efforts schools of the nineteenth free from sectarian influence were kinds. One took form of.two provisions adopted by of constitutional and statutes a number of forbidding appropriations public treasury States from the for the support any Moehlman, manner. See The instruction Separation 132-135; (1951), Wall of Between Church and State Lardner, Separate How Far Does the Constitution ? Church and State (1951). 45 Am. Pol. Sci..Rev. The other took the form against reading directed measures use of sectarian and teach ing public materials the schools. The texts used in the earliest largely private academies, schools had been taken over from the strongly religious Nichols, and retained a character and content. See Religion-and Democracy (1959), 64-80; Kinney, American Church State, Struggle Separation Hampshire, in New 1630- (1955), 1827, however, 150-153. In -Massachusetts enacted providing might a statute that school boards not thereafter “di any purchased used,. rect school books to be any particular religious schools . . which are . calculated to favour 2 Stokes, sect or tenet.” in the Church and State- United States background (1950), 53. For further discussion of the of the Massa early application, Dunn,. chusetts law and difficulties in its see religious composition vastly makes us a more our Third, They forefathers. knew people diverse than were our chiefly among Today Protestant sects. differences including heterogeneous religiously, is far more as Nation only it does substantial minorities not of Catholics according who to no worship Jews as well but those worship version of the Bible and those who no God at all.8. Religious Happened As other What Education? c. IV. the_ example Massachusetts, followed the use of sectarian States widely prohibited public appropriation texts in time as was funds for instruction.

Concerning systems the evolution of the American school influence, compare free of sectarian Justice Frankfurter’s account: Mr. pertinent principle “It is the establishment of this remind-that Separation in the field of education was not due to decline in religious people. beliefs of the Horace Mann was a devout Chris religious tian, deep feeling stamped upon and the of James Madison is imply public the Remonstrance. The-secular indif school did not religion people, basic role- of in nor ference the life of the rejection religious fostering education a means of it. The claims by refusing public were not minimized to make the schools agencies public for their assertion. The non-sectarian or secular school reconciling general the means of was freedom in with freedom. sharp public The confinement of the schools to secular education was recognition society of the need of a democratic to educate chil its dren, atmosphere so, insofar as the State undertook to do in free an pressures pressures in in a realm which resisted and are.most easily bitterly engendered.” most most Illinois where conflicts are Education, ex rel. McCollum v. Board 333 U. S. comparative religious homogeneity The of the States at United Rights adopted Haller, the time the Bill of was been in has considered Background Amendment, ed., The Puritan of the First in Read The (1938), 131,133-134; Beth, Reconsidered Constitution The American Theory 74; (1958), Kinney, State, of Church and State Church and Struggle Separation The for in New Hampshire, 1630-1900 However, suggested Fifty-first 155-161-. Madison in the Federalist religious diversity that' the which existed at the time of the Con strength stitutional Convention constituted a source of freedom, multiplicity political much as the of economic and interests security rights. (Cooke of other enhanced civil The Federalist 1961), ed. 351-352. face, Watkins,

See Torcaso v. 495. In U. S. profound changes, such been which practices have to no one Jefferson Madi- objectionable time of son may today highly be to many offensive persons, deeply devout and the nonbelievers alike. or thought

Whatever Jefferson Madison would have reading Bible recital of Prayer the Lord’s in what public few schools existed in day, their our use history their time must limit itself to broad purposes, not specific practices. By per- such a I standard, am as is Court, suaded, the devotional exercises car- ried on in the Baltimore and .Abington schools offend the First Amendment they sufficiently because threaten day our those substantive fear of evils the called which forth the Establishment of the First Clause Amendment. It is constitution expounding,” “a we are inter- our pretation of the necessarily must First Amendment responsive to highly charged the much more nature religious questions society. in contemporary .

Fourth, experiment the American free educa public tion guided large available to all children has been by the measure dramatic evolution of the diver among sity population schools serve. our important interaction of these two our forces national, life placed has in bold certain positiva relief the application public consistent institutions .values generally, public schools of particularly, the constitu against tional decree official of involvements might produce the evils Framers the the meant public Establishment Clause forestall. The schools supported entirely, public are most by communities, funds —funds not only exacted from alone nor parents, who particular from those hold in views, nor any deed from those who subscribe to all. It creed at history implicit the of pub is character American public lic uniquely education that schools a serve function, in an training of American citizens public in separatist or divisive, of atmosphere parochial, free children in which atmosphere sort —an fluences groups American heritage common to all a assimilate ex McCollum v. Board religions. Illinois rel. See heritage a neither Education, 203. This S. is U. See simply patriotic.. civic and atheistic, nor but theistic Nebraska, 400-403. Meyer v. U. S.

, com been public schools has never Attendance at the constitutionally morally and pulsory; parents remain they in which academic environment free to choose the relationship The children to be educated. wish their First Amendment Establishment Clause that of reserv public system preeminently school is rather than ing parent, such a choice to the’individual State or vesting majority it in the of voters each is preserved choice which is thus school district. uniquely with its secular education public between democratip private and some form of or sectarian values, jny In judg which offers values of its own. education, Amendment forbids the to inhibit ment the First State diminishing by that freedom of choice attractiveness restricting liberty either alternative —either they schools to inculcate whatever values private freedom of the schools wish, by jeopardizing or pressures. or The choice between private sectarian very much very these different forms education one-?— to worship like choice of whether our or —which parent. the individual is no Constitution leaves to It government or local to in proper function of the state . history— election lesson of fluence restrict-that The. experiences of other than drawn more from the countries system education .public from our own—is free growth of unique contribution to the demo forfeits its citizenship freely when choice ceases to be cratic parent. to each available

243 II. exposition by this Court of religious guarantees

of the First consistently Amendment has reflected and reaffirmed the concerns which impelled to the Framers guarantees write those into the Constitution. It would possible neither nor appropriate to review here the entire of our course decisions on' questions. emerge There decisions, however, prin- those three ciples of particular relevance presented by to issue the cases at bar, some attention to those decisions is thérefore appropriate.

First. One line decisions derives from for contests control of a church property or other internal ecclesiastical disputes. This has proposition line settled the give order effect to the First purpose Amendment’s requiring on part organs government of all a strict neutrality theological toward questions, courts should not undertake to questions. decide such principles These expounded in were first the case of Watson v. 13 Jones, Wall. which declared judicial intervention controversy such a would open up “the subject whole doctrinal theology, usages the writ customs, laws, and organization ten fundamental of every religious denomination . . .” 13 . at 733. Wall., Courts above all must be law neutral, knows no heresy, and is “[t]he committed to support of no dogma, the establishment recently of no sect.” 13 Wall., principle at 728. This has Comment,.The See Power of Courts Over the Internal Affairs Religious Groups, (1955); 43 Calif. L. Rev. 322 Comment, Judicial Disputes Independent Intervention Bodies, Within Church (1955); Note, Disputes Mich. L. Rev. 102 Judicial Intervention Over Property, the Use of Church (1962). 75 Harv. L. Rev. Executors, 2 Compare. v. Girard’s Vidal principle How. 127. The judicial essentially religious disputes nonintervention appears have been reflected in the declining decisions of several state courts essentially private agreements concerning enforce edu- Nicholas Cathe St. reaffirmed v. en Kedroff

be Cathedral, Kreshik v. St. Nicholas dral, 94; S. and 344 U. S. 190. U. theological con mandate of judicial-neutrality The Ballard, in United States v. met its test troversies severest sharp relief certain put S. 78. That decision U. directly upon questions pre bear principles which was for in these Ballard indicted fraudulent sented cases. religious litera use mails in dissemination of of the trial submit to the requested ture.. that court He religious jury of the question the truthfulness views requested charge refused, he was championed. The reasoning upheld we that the First Amend refusal, into the or any judicial inquiry foreclosed truth ment religious falsity of the defendant’s beliefs. We said: to was no “Man’s his God made relation concern was granted right worship state. He to he pleased'-and verity to no man of his answer to they views.” “Men believe what cannot worship separated parents. cation and children of or divorced See, g., Hackett, ; v. e. Hackett 78 Ohio E. Abs. 150 N. 2d 431 Stanton, 289; Friedman, Stanton 100 S. 2d 213 Ga. E. The Right Religious Child, to Parental Control the Education of a 29 Harv. (1916); (1958); Note, L. Rev. 485 Harv. L. Rev. 372 10 West. (1959) Res. L. Rev. 171 . Governmental nonintervention in affairs and institutions seems assured of India, Article 26 Constitution provides:

“Subject morality health, every religious to order, de- right— shall nomination section .thereof have the “(a) maintain institutions for establish.-and and chari- table purposes;

“(b) manage religion; its-own affairs matters of “(c) acquire property.; to own and and immovable movable “(d) property to administer such in accordance with law.” See Chaudhri, Rights (1955), Constitutional 875. This Limitations not, appear completely howevgr, Article does to have foreclosed judicial inquiry disputes. into the merits of intradenominational See Rights in Gledhill, Fundamental India 101-102. prove. They may put proof not be to the of their reli- gious Many gospel or beliefs. ... their doctrines take from the hardly sup- New But it would Testament. posed that they jury charged could be tried before a with duty determining teachings whether those con- false representations.” tained U. at 86-87. S., dilemma presented by the case was severe. While alleged nonreligious publications truthfulness could ordinarily jury, have been submitted Ballard deprived only was defense First because the governmental verity Amendment inquiry forbids into the beliefs. In dissent Mr. Justice Jackson expressed the concern the that under this construction of “ [prosecutions easily First Amendment this character degenerate S.,~ could into persecution.” 322 U. line, at 95. The ease shows how is en elusive the which injunction forces the neutrality, Amendment’s strict while no manifesting hostility official toward religion— in line which must be considered cases now before the us.10 might Some view result of the the Ballard case hostility manifestation of that the conviction stood —in because the defense could not be raised. To others

10 discussion, For a case, of the difficulties inherent in the Ballard Kurland, Religion see and the Law 75-79. This Court eventually quite ground reversed the on the convictions unrelated systematically had that women been jury, excluded from the Ballard States, v. United 329 U. S. 187. For the difficulties discussions interpreting applying the First so as to foster Amendment objective neutrality hostility, g., the see, Katz, without e. Free Religion Neutrality, 426, dom of and State Chi. U. of L. Rev. (1953); Church, State, Kauper, Review, A Freedom: (1954). L. Compare, interesting ap Mich. Rev. for an parent attempt problem the avoid Ballard the international level, Treaty Article 3 of the Multilateral between United States provides Republics, and certain American will that extradition granted, alia, when not be inter . against “the offense is . . directed religion.” Blakely, Papers American State and Related Documents Religion (4th on 1949), Freedom in rev. ed. merely principle strict adherence to the

might represent involving already expounded the cases neutrality upon insistence neu disputes. Inevitably, doctrinal for untrammeled trality, surely as it is vital religious hostility. may appear upon tú border liberty, church long independence But in the both view spheres state their will be better respective served by neutrality principle. close adherence to If choice difficult, difficulty is often endemic to issues is implicating religious guarantees Amend of the’ First ment. Freedom of seriously jeopardized will be if exceptions we admit for no dif better reason than the ficulty of delineating hostility neutrality 'closest.cases. It only recently

Second. is our have decisions dealt with question arising whether issues under the Establishment Clause im problems isolated from the Free Everson Exercise Clause. v. Board plicating Education, 330 S. my U. view first our deci sions which treats a problem of unconstitutional asserted involvement as raising questions purely under Estab lishment Clause. A scrutiny of several earlier decisions said some to have etched the contours clause shows that such cases neither raised nor decided con stitutional issues under the First Amendment. Bradfield Roberts, 175 U. S. for example, challenges involved to a grant federal to a hospital by administered a Roman Catholic order. The rejected Court the claim for lack of evidence any that sectarian changed influence its char acter as a secular institution chartered as by such the Congress.11

Quick Bear v. Leupp, U. S. is also illustrative. question immediate there was one of statutory con- although struction, the issue had originally involved the Religion Kurland, See (1962), and the Law 32-34. sup- constitutionality the use federal funds to port sectarian on Indian reservations. Con- education gress grants pur- for already prohibited had federal that leaving pose, thereby removing only broader issue, the question appro- whether the statute .authorized priation for religious teaching Treaty by funds held trust for the Government Indians. Since these funds, were own only the Court held that the Indians’ might Indians direct for pur- their use such educational poses they chose, by and that the administration Treasury of the of the did not inject disbursement funds any propriety into the case issue use fed- moneys.12 eral Indeed, expressly approved Court reasoning of the of Appeals deny Court that right Indians the to spend their own moneys purposes might of their choice well infringe the free exer- religion: “it cise their seems inconceivable that Con- gress prohibit should have intended to them from receiv- ing religious education at their if they own cost so desired . . .” S., . at 82. U. This case forecast, however, an increasingly troublesome First paradox: Amendment logical interrelationship between the Establish- ment and Free may produce Exercise Clauses situations injunction where an against an apparent establishment must be withheld order to avoid infringement rights of free paradox exercise. That squarely was not pre- Quick Bear, sented in by but the care taken the Court 12Compare the apparently very treatment an problem similar in Article 28 of the Constitution of India: “(1) No provided any instruction shall be educational wholly institution maintained out of State funds. “(2) Nothing (1) apply in clause shall to an educational institu- tion which is administered' the State but has been established under requires endowment or trust instruc- imparted tion shall be in such 1 Chaudhri, institution.” Constitu- Rights tional 875-876, Limitations an aware- discloses a constitutional confrontation to avoid I two clauses. conflicts between the possible ness of infra, pp. 296-299. problem later, to shall come back this Louisiana State. is Cochran v. group A third case this which, challenge a to a Board, 370, S. involved U. support a loan providing public state statute funds public private pupils of both free textbooks extended The issues this schools. constitutional Court program amounted to no further than the claim that this taking private nonpublic use. Court property ground private claim on the that no use rejected the . . can not doubt property involved; was “. we taxing public purpose.” is exerted for a power the State no issue S., 281 U. at 376. The case therefore raised under the First Amendment.13 Society Sisters,

In Pierce v. 268 U. S. Catholic parochial private military school and a but nonsectarian academy challenged requiring- a state law all children ages to attend This public between certain schools. arbitrary Court held the law as an and unreason- invalid rights able interference both with the' of the schools and liberty parents with of the children who at- process guarantee tended them. The due of the Four- teenth any general power Amendment “excludes by forcing accept State to standardize its children them only.” instruction from teachers atS., 268 U. 535. plaintiffs While one of the a parochial school, was indeed obviously case decided no question First Amendment recognized but only right the constitutional to estab- lish and patronize private including parochial schools— schools—which meet the state’s reasonable minimum requirements. curricular Kurland, Religion See and the (1962), 28-31; Fellman, Law

Separation of Church and State in Summary the United States: A View, 1950 Wis. L. Rev.

249 “two the says, that Court true, as the Third. It may overlap.” and Free Exercise] clauses [Establishment under the however, our decisions overlap, of the Because relevance to bear considerable Clause Free Exercise briefly reviewed. be and should before us, now problem objec- generally involved cases early free éxercise The to them application to the religious minorities tions of conduct. governing legislation nonreligious of general involved the States, 98 U. S. Reynolds v. United marriage pre- sanctity plural in the that a belief claim particular sect of members the conviction cluded mar- legislation against such nondiscriminatory under saying: rejected claim, riage. The Court government actions, made for the “Laws are religious interfere with mere be- they while cannot . . . they may practices. with opinions, liefs and contrary practices his to the a man excuse Can permit belief? To this would of his because doctrines of belief professed make the be to land, per- effect to to the law superior citizen to become law unto himself. every mit only could in name under such exist Government 14 atS., circumstances.” 98 U. 166-167.

14 distinction, implicit Amendment, This in the First had been made Rights provision explicit original Virginia men in the Bill that “all according. enjoy toleration in the should fullest exercise of conscience, unpunished and unrestrained to the dictates of religion any peace, under man disturb the magistrate, unless color Society.” Religious safety Cobb, happiness, or See The Rise of (1902), Concerning legislative Liberty various lim America upon religiously motivated behavior which and restraints itations society, Manwaring, endangers or see Render Unto Caesar: offends Controversy Flag-Salute 41-62. courts have Various principle proscribe certain applied this exercises or activi thought safety par threaten the were or morals of the ties which g., Massey, State v. community, ticipants e. 229 the rest of the N. C. or Beason, similarly S. Davis v. U. involved pun claim Amendment insulated from civil First by reli practices inspired ishment certain or motivated gious easily rejected: The claim was “It was beliefs. amendment could supposed never intended protection against legislation punish as a for the invoked good of acts inimical to peace, ment order morals S., also Mormon Church society.” U. at 342. See States, 1; United v. U. S. Jacobson Massachu setts, Massachusetts, 197 U. S. Prince v. S. 11; U. States, 158; Cleveland v. United 329 S. 14. U. not governmental

But we must confuse the issue of power regulate or prohibit by to conduct motivated reli gious quite problem govern with the different beliefs authority compel mental to to behavior offensive principles. Regents In University Hamilton v. California, 293 245, question S. U. was that power of a compel State to at students the State Univer sity participate military training to against instruction their convictions. validity The of the statute against was sustained upon claims based the First Amend ment. But the decision rested a very on narrow prin ciple: since there was right neither constitutional nor a legal obligation to attend the State University, the- obligation military to participate training courses, 708; State, 734, 51 179; Harden 17, 216 S. E. 2d Tenn. S. W. 2d v. Lawson Commonwealth, Ky. v. 972; 164 S. W. 2d cf. Sweeney Webb, App. v. 33 Tex. Civ. 76 S. W. 766. principle cases, That of these and the distinction between belief behavior, susceptible perverse are sug- application, be gested by Oliver besieged Cromwell’s mandate to the Catholic com- munity in Ireland: “As conscience, to freedom of I meddle conscience; with no but man’s you by that, liberty if mean Mass, to celebrate the I would have you place understand that in no power whére the the Parliament England prevails permitted.” shall Hook, Quoted Paradoxes of Freedom properly.be reflecting legitimate interest, might state Although who chose to attend. imposed upon those First and Fourteenth Amendments rights protected right entertain be presumed were to include “the the doctrines principles to adhere to the teach liefs, order objections on which these base their to the students prescribing military training,” those Amendments were military from the not to free such students construed obligations they training if chose attend the Univer sity. Brandeis, Stone, Cardozo and concurring' Justices no, agreed infringed that the con separately, requirement however, stitutionally protected They added, liberties. presented that the case no under the.Establish question military program ment Clause. The instruction w^s an in way establishment since it no involved “instruction practice religion.” of a S., tenets at 266. U. only question they Since the was one of con exercise, free cluded, strong like the that the majority, state interest in training a justified imposed,' citizen militia the restraints long least so attendance at was University5 voluntary.1

Hamilton has not United overruled, although been Schwimmer, States v. United States S. 644, U. Macintosh, 283 S. in upon U. which the Court Hamilton relied, Girouard v. have since been overruled States, United U. S. 61. But Hamilton retains if vitality respect higher with to education, we recognized cognate its inapplicability to questions public pri schools when we held in West Vir mary secondary ginia Barnette, Board Education supra, v. a State that had no power expel to from public schools students who on grounds refused comply daily flag to with a respect Regents, compare With to the decision in Hamilton v. two Kurland, Keligion 40; recent comments: Law French, Comment, Analysis, Unconstitutional Conditions: An (1961). 50 Geo. L. J. course, requirement such was Of requirement.

salute religion” “respecting establishment of no law an more a compelling college law students than California military training. The Barnette more- plaintiffs, to take be but enjoined, did not that the whole exercise over, ask for exemption provided an those only, that excuse or partici- whose beliefs forbade them students ceremony. key pate holding The to the that such abridged rights lay requirement free exercise voluntary fact attendance at school not was but Court compulsory. The said: issue is not prejudiced by previous “This the Court’s ¿ holding State, that where without compelling at- tendance, college extends facilities to who pupils vol- untarily enroll, may prescribe military training as part course without offense to the Constitu- Regents, Hamilton . . . tion. 293 U. In S. case present optional.” attendance is not atS.,U. 631-632. Barnette significant

The decision made another point. The held Court the State must make participation in the voluntary alone, exercise for all students who those’ found participation obnoxious on grounds. In there short, was no simply “inquire need to whether non-conformist will exempt beliefs duty from the to salute” because the Court found no “power state legal make duty.” the salute a S., 319 U. at 635.

The distinctions between Hamilton and Barnette are, I think, crucial to the resolution of the cases us. before different results those cases are only attributable part to a difference strength of the particular state interests which the respective statutes designed were Far significant serve. more is the fact that Hamilton dealt the voluntary with attendance at college of young adults, while Barnette compelled involved the attendance secondary schools.16 elementary at children young of in constitutional a difference warrants distinction This of involuntary attendance it is with And results. exclusively concerned we children that are young school the Court. before in the cases now

III. Amend- of the First that the Framers questions one No powers of exclusively to restrict ment intended limitations Government.17 Whatever the Federal imposes upon States derive Amendment now absorption process Fourteenth Amendment. as religious guarantees the First-Amendment of the Fourteenth the States under against protections In Exercise Clause. began with the Free Amendment of the Fourteenth protections that the 1923 the Court held ac- God person’s worship freedom “to included at least . . . .”18 cording to his own conscience the dictates Nebraska, Hamil- Meyer 390, S. 399. See also v. U. Connecticut, Regents, supra, ton at 262. Cantwell v. v. absorption? 296, completed process 1940 the 310 U. S. Barnette generally background history as to the See Flag-Salute Controversy Manwaring, case, Render Unto Caesar: The interesting especially Compare, treat (1962), at 252-253. for the Barnette, problem nonconstitutional of a similar to that ment Lamorandière, Les Commissaires D’Ecoles de Chabot v. context, ^[1957] Barron See v. Que. B. R. 707, Baltimore, noted in 4 McGill L. J. 268 7 Pet. 243; Permoli (1958). New v. Orleans, Ohio, 5 cf. Fox Withers v. 609; 410, 434-435; 589, How. 3 How. Buckley, early however, As least 20 How. 89-91. argued guarantees Rights, the Bill one commentator Amendments, excepting only were those of the First and Seventh powers Rawle, A to limit the of the States. View of the Con meant stitution of the United States of America 120-130. Meyer, In addition to the statement of this Court at least one early abridgment court assumed as as 1921 that claims state the free exercise of in the schools must be tested under guarantees of the First Amendment as well as those of the state 254 aspect: Exercise Clause and its dual Free recognized affirmed freedom of belief as an absolute lib Court recognized that also conduct, may but while be

erty, comprehended by Clause, the Free “remains sub Exercise. ject regulation protection society.” atS., already U. 303-304. This was a drawn distinction by Reynolds States, supra. v. United beginning From the recognized this government Court has while that regulate religious beliefs, behavioral manifestations it may not interfere at all with the beliefs themselves. absorption Clause how has, Establishment come later and ever, by easily route It less charted. has suggested, history, with support some that been absorption against of the First con Amendment’s ban gressional legislation “respecting establishment of an religion” conceptually impossible is because the Framers meant any Establishment Clause also to foreclose attempt by Congress to existing disestablish the official state churches.19 Whether or not such was the under standing of the Framers and a purpose whether such would inhibited the absorption have of the Establishment Clause Century at the threshold are Nineteenth questions present dispositive inquiry. our For it Trustees, v. Board Hardwick School constitution. App. 54 Cal. 696, 704-705, 49, Jackson, Religion, See P. 52. Louisell and Theology, Higher Education, 751, and Public 59 Cal. L. Rev. (1962). Even before the Amendment, Fourteenth New York' State general provided enacted common school law in 1844 which no given instruction should which could be construed to rights by violate the of conscience “as secured the constitution of this Laws, 1844, United States.” N. Y. c. § state 19 See, g., Religious Snee, e. Disestablishment and the Fourteenth Amendment, 373-394; Kruse, L. 1954 Wash. U. The Histori Q. Meaning cal and Judicial Construction of the Establishment Reli gion Amendment, 65, 84-85,127- Clause of the First 2 Washburn L. J. (1962); Religion Katz, Constitutions, and American Address at University School, 29, 1963, pp. Northwestern Law March But 6-7. history clear on the record of last the formal state establishments was dissolved than three dec- more ades before the Fourteenth Amendment was ratified, problem thus the of protecting official state churches federal encroachments could hardly have been con- cern of who post-Civil those framed the War Amend- Any ments.20 such of the First objective Amendment, having become historical anachronism 1868, cannot be thought to have deterred absorption of the Estab- greater any degree lishment Clause to than for it.would, example, absorption have deterred the of the Free Exer- cise organ Clause. That no of the Federal Government -possessed in 1791 any power to restrain the interference of in religious the States is indisputable. matters See Orleans, Permoli v. New 3 How. is equally plain, 589. It on the other hánd, the Fourteenth Amendment panoply created a of rights pro- new federal for the tection of citizens of among the various States. And rights those was freedom from such governmental state the affairs of involvement as the Establishment originally Clause had part Congress. foreclosed on the of see the debate in the question Constitutional Convention over the necessary whether it was among or advisable to include the enu powers Congress merated power of the University, a “to establish an preferences in which no should be allowed on account distinctions religion.” delegate of At thought explicit delega least one such an necessary,” tion “is not power exclusive at of Seat “[t]he Government, object.” proposal will reach the The was defeated only Farrand, two votes. Records of the Federal Convention of (1911), establishment, The last formal Massachusetts, that of was dis process solved in 1833. The of disestablishment in that and other States is described in Cobb, Religious The Liberty Rise of in America X; (1902), Sweet, Story Religion c. The of in America c. greater XIII. The existing relevance of conditions the time of adoption of the suggested Fourteenth Note, Amendment State Constitution, Sunday Religious Laws and the Guarantees of the Federal 729, 739, (1960). Harv. L. Rev. n. 79 7 suggested “liberty” It also been that the guaranteed has by the Fourteenth absorb logically Amendment cannot the Establishment Clause because that clause is one provisions of the of Bill of Rights pro- which in terms A Corwin, tects “freedom” of See the individual. Con- of stitution Secular 113-116. Powers State (1951), fallacy in I contention, think, this is that under- estimates the as a co- role Establishment Clause guarantor, with the Exercise Clause, Free liberty. liberty The Framers did not entrust reli- gious beliefs to either clause alone. The Free Exercise “was Clause not to the full extent of the Amendment’s guarantee governmental of freedom from intrusion mat- Maryland, McGowan ters of faith.” supra, at 464 (opinion Frankfurter, J.). -

Finally, absorption it has been contended that the Establishment precluded by Clause is absence part intention on the Framers of Four- teenth powers Amendment to circumscribe the residual States aid activities and institutions ways which fell short formal establishments.21 That argument upon in part express relies terms

21 Corwin, See A (1951), Constitution of Powers in a Secular State 111-114; Morrison, Fairman and Does the Fourteenth Amendment Incorporate Rights? (1949); the Meyer, Bill of L. Stan. Rev. Comment, Rights, The Blaine Amendment and the Bill of 64 Harv. (1951); Religion Howe, L. Rev. 939 Education, and Race in Public (1959). Principles 8 Buffalo L. .242, Rev. 245-247 Cf. Cooley, of (2d ed. 1891), Compare Constitutional Law 213-214. Professor Freund’s comment:

“Looking back, it hard to see how is the Court could have done persisted accepting how it otherwise, could- have freedom con- guaranteed liberty giving equal tract as a without status to freedom press speech, assembly, religious observance. What does not seem so inevitable is the inclusion within the Fourteenth Amend- concept religion ment of the of nonestablishment in the sense of nondiscriminatory forbidding religion, aid to where there is no inter- religious ference with freedom of Freund, Supreme exercise.” The Court of the United States 58-59. proposed years

abortive Blaine several Amendment — adoption after the Fourteenth Amendment —which the added a provision would have to First Amendment any respecting State shall make law an estab- that “[n]o . . religion lishment . Such restriction would said, have been is if Fourteenth Amend- it superfluous, had already binding ment made the Establishment Clause upon the States. argument proves

The too the Fourteenth much, protection Amendment’s of the free exercise of hardly questioned; yet can be Blaine Amendment also an explicit protection against would have added state laws'abridging liberty.22 Even if we assume that the draftsmen the Fourteenth Amendment saw no imme- against diate connection its state protections between infringing personal guarantees action liberty and Amendment, day First is too certainly late suggest that their assumed question inattention the force of guarantees dilutes these constitutional in their application enough the States.23 It to conclude The Blaine Amendment, Cong. Rec. included also a more explicit provision money any bk “no raised taxation in State support public any for the schools or from fund derive^ any public therefor, thereto, nor lands devoted shall under ever be any religious control sect or denomination . . . .” passed requisite Amendment but the House failed to obtain the two- Cong. prohibition thirds vote See 4 Senate. Rec. 5595. The engrafted which the Blaine Amendment would Ameri have onto the incorporated can Constitution has other been in the constitutions of compare (1) (“No nations; Article 28 of the Constitution of India provided any instruction institution shall educational wholly funds”); maintained out of Article XX of Consti State Japan (“. organs tution of . . the State and its shall refrain activity”). Chaudhri, education or other See 1 Rights (1955), 875, Constitutional and Limitations Three years after the adoption of the Fourteenth Amendment, Bradley expressing proposed Mr. Justice a letter his wrote views on a designed acknowledge dependence constitutional amendment to the religious liberty' embodied in the Fourteenth if would not be the Constitution Amendment viable forbid interpreted only were to establishments ordained Congress.24 upon recognize God, of the Nation and to the Bible as the foundation supreme of laws and the ruler of its its conduct: ' necessity expediency “I have never been able to see the or of the obtaining movement for such an amendment. The was Constitution evidently adopted by people framed and of the States United with the fixed to determination allow absolute freedom equality, appearance religion, and to avoid even of or a all a State any particular endorsement or . . State creed sect. . original adopted, And after the in its form Constitution was people Congress made haste to secure an amendment that shall make respecting religion, prohibiting no law establishment of the free an Revolutionary exercise thereof. shows earnest desire our This religion voluntary be fathers that should left to the free and action people manifesting any I regard do not it themselves. as hostility showing religion, to as fixed to but determination leave entirely people subject. free on the wise; great “And seems to me that our fathers were that the voluntary system country quite pro- of this favorable as systems governmental protection motion real as patronage have been in other countries. And whilst I do under- you represent that the stand association which desire to invoke governmental interference, step still sought the amendment is a good (quite that direction which our as our- fathers Christians thought selves) country they thought it wise not to take. In this they thing least, province gov- settled had one that it is not the theology. ernment teach Religion, . support government,

“. as the basis and . civil must reside, Constitution, not in the people written in the but themselves. legislate religion people. cannot And we into the It must infused by gentler and Writings Joseph wiser methods.” Miscellaneous Bradley (1901), P. 357-359. phase controversy For later over such a amend- constitutional Bradley opposed,

ment as which Justice Finlator, see Christ .that Congress, (1962). 4 J. Church State that, There is no doubt whatever “establishment” have meant the Framers First Amendment in the drafts quarters century men of Fourteenth Amendment three of a later many understood the Establishment Clause to foreclose incidental the Establish activities particular of what The issue is our more' the States undertake forbids ment Clause Education, In Everson v. Board concern. immediate of history study of the relevant 15-16, a careful 1, S.U. recognized in deci consistently view, to the led the Court Everson, Clause the Establishment sions since government conclusion that Framers’ embodied the best mutually are religion have discrete interests other. to the proxiihity too close served when each avoids injection fears the who only It is not the nonbeliever polity, into the civil doctrines and controversies sectarian who fears high degree it is the devout believer but as deeply too of a creed which becomes the secularization It government.25 dependent upon the with and involved short of "the governmental which fell far forms of aid Report support The a Senate creation or of an official church. early of the example, contained this view Committee as Establishment Clause: any fairly Congress pass, which, passed,

“If has or law should degree attempt to intro- construed, any introduced, or should has system any association, church, or or duce, in favor of ecclesiastical any particulars— or of these obnoxious faith, all one privileges members, public expense, peculiar to its endowment at the reject disadvantages penalties upon its doc- or those who should or would be a ‘law belong law trines or to other communions—such therefore, respecting religion,’ and, in violation an establishment of Cong., Rep. 2d 1-2. S. No. 32d Sess. of the constitution.” Cooley’s exposition year in which the Compare Thomas M. was ratified: Fourteenth Amendment American things under of the “Those which are not lawful may be stated thus:— constitutions religion. Any respecting . . . law an establishment “1. otherwise, Compulsory support, or taxation

“2. only denomination to be favored at Not is no one instruction. support religious instruction must be expense rest, but all ” (1st voluntary. Cooley, Limitations ed. entirely Constitutional 1868), 469. g., Roger to the Compare, Miller, His Contribution e. Williams: Madison, (1953), 83, with Memorial and Tradition American Ap- Religious Assessments, Against as an Remonstrance reprinted history has been said of the the Establishment rightly liberty only “our tradition of civil rests Clause that also on of a Thomas Jefferson but on the secularism Roger Freund, ... Williams.” fervent sectarianism Court of the Supreme United States on education questions Our decisions consistently in the schools re- exercises have aspect flected this dual of the Establishment Clause. Engel has its roots in earlier unmistakably v. Vitale three cognate shaped on of which, issues, cases the contours in Court held First, Establishment Clause. Everson the of by parents reimbursement the town for cost by transporting public parochial their children carrier to (as public private nonsectarian) well schools did as not offend the Establishment reimburse- Clause^—Such easing ment, by upon par- the financial burden Catholic ents, may fostered indirectly operation have may thereby Catholic facili- schools, indirectly have teaching tated principles, serving Catholic thus ultimately religious goal. govern- But this form mental assistance was to distinguish myriad difficult other if insignificant government incidental benefits enjoyed by police protec- institutions —fire and tion, tax exemptions, pavement and the streets sidewalks, example. “The State contributes no money schools. not support It does them. Its legislation, applied, no provide gen- does more than eral program help get parents children, regardless their of their religion, safely expeditiously to and from pendix dissenting opinion to the Everson Rutledge, of Mr. Justice v. Education, supra, Board See Calm, 63-72. also On Govern Prayer, ment and (1962); N. Y. U. L. Rev. 982-985 Jef ferson’s Establishing Religious Bill for Freedom, Padover, in The Complete Jefferson (1943), 946-947; Myers, Report Moulton and Appointing Chaplains on Legislature York, Blau, of New in Religious in 156; Cornerstones Freedom America 141 - Bury, History A Thought (2d of Freedom of 1952), ed. 75-76. this even at 18. Yet S., schools.” U. accredited by four Justices thought was of assistance form Clause Establishment by the to be barred Court Everson of reli- support to that close perilously too because the First Amendment. gion forbidden twp rel. McCollum v. Board ex cases, Illinois The other Clauson, 343 Zorach Education, 203, and 333 U. S. together. Both involved best be considered 306, can U. S. pub religious instruction time for of released programs Zorach suggestion that reject I lic school students. distinction McCollum silence.26 overruled in my is, the two cases drew Zorach between the Court Clause. the function of the Establishment view, faithful to Zorach McCollum and note, however, that I first should of the free distinguishable me terms not seem to do nonpartici- cases.27 The advanced both exercise claims instruc- given was secular program in McCollum pant classmates during room the times his separate tion in a lessons; nonparticipant Zorach had while his class- instruction, also received secular program place to a outside the school for repaired mates instruction. think, I was that the McCol- difference,

The crucial while program lum offended the Establishment Clause program not, my view, did not. This was the Zorach public expenditures the difference in involved. because of program regular McCollum involved the use True, the light classrooms, heat and and time facilities, school regular day though the actual from the. school —even 26 .g., e. Supreme See, Spicer, The Court and Fundamental Free (1959), 83-84; Church, State, Review, Kauper, doms and Freedom: A 829, (1954); Reed, 52 Mich. L. Rev. 839 Church-State and the Lawyer (1952). Case, 529, Notre Dame 539-541 Zorach 27. 27 S., (Frankfurter, J., dissenting); Kurland, See 343 U. at 321-322 recognize Religion (1962), question I and the Law 89. there is a in Zorach the free exercise claims asserted were in whether fact proved. S., 311. 343 U. at negligible. religious cost All

incremental have been was program, by contrast, instruction the Zorach under entirely premises, on off the school and the carried re part simply was facilitate the teacher’s .children’s was that the deeper lease the churches. difference religious McCollum program placed the instructor school, public position classroom in precisely the the regular authority by subjects, held teachers of secular Zorach did program pro- while the not.28 The McCollum 28Mr. Justice Frankfurter described the effects of the McCollum program thus:

“Religious property education school is so conducted on time and patently working woven into the scheme school. The Cham- paign arrangement presents powerful pres- thus elements of inherent system religious sure 'the school As interest sects. ... result, system actively public Champaign school furthers faiths, process inculcation in the tenets some sharpens among the consciousness of differences at least some S., children its committed to care.” IT. 227-228. enjoined public For similar reasons some state have schools courts employing accepting from the services of members of Huff, teaching subjects, g., orders even in the of secular e. Zellers v. 949; 501, Berghorn Reorganized 55 N. M. 236 P. 2d School Dist. 8, 121,-260 compare ruling No. 573; Mo. W. 2d S. Texas Education, 25, 1961, Commissioner of Jan. 63 American Jewish century ago Yearbook 188. a half York Over a New court sustained a school board’s exclusion schools of teach- wearing religious garb grounds: ers on similar through “Then all hours school teachers . were before these . . object they the children as lessons the order and church of which young were members. It our within common observation that very susceptible children . . . are to the influence of their teachers and object continually kind of lessons before them in schools con surroundings.” ducted under these circumstances and with these Hendrick, App. 361, 371-372, O’Connor v. Supp. N. Div. Y. Herr, 68; See also Commonwealth v. 229 Pa. 78 A. Comment, Religious Study Garb in Public Schools—A in Con flicting Liberties, (1955). 22 U. of L. Chi. Rev. 888 apposite Also enjoined are decisions of several courts which have the parochial part of public system, use schools cf school Harfst instruction support sectarian to the lending in gram, public operated governmentally of the authority all the into that brought government system, school To forbids. Clause which the Establishment proximity commands sub- presumably teacher a be sure, right. own attention his and merits respect stantial prestige permit does Constitution not. But augmented by investiture for influence to be capacity lay at command authority symbols all instruction. for the enhancement secular teacher the contours further etched recent decisions have More Cases, we found Sunday Law In the of Establishment. day of rest a uniform compelling in state laws Clause Establishment no worldly labor violation The basic 420). Maryland, 366 S.U. (McGowan v. pro 609; or have invalidated 808, 163 2d Hoegen, 349 Mo. S. W. v. public of Gideon grams school classrooms for the distribution County Instruction, Orange 128 So. Board Public Bibles, Brown v. Tudor, Education, 31, 100 A. App.); Board N. J. (Fla. v. 2d 181 of Reli Amendment and Distribution Note, The First 857. See 2d 789, 803-806 Schools, 41 Va. L. Rev. gious in the Public Literature public role of the schools Tudor, the court stressed the (1955). In program: in the Bible machinery bring dis- is used to about school “. . . eyes of the In the of these Bibles to the children ....

tribution stamp placed its parents the board of education pupils and their has fact, upon upon and, in the Gideon approval this distribution of-re- This is more than mere ‘accommodation’ itself. . . . Bible dis- part in this Zorach The school’s ligion permitted in the case. on the basis a one and cannot sustained tribution. is an active 2d, religion.” J., 51-52, 100 at 868. 14 N. A. mere assistance recognized by authority one significance of the teacher’s was early court decision: state right being session, to command was vested

“The school imposed upon pupils. duty teacher, of obedience and the request a command have the same such circumstances Under authority mere request is understood to meaning. A from one he command, form.” State in an inoffensive euphemism. It is in fact a 876, 880, N. Scheve, 65 93 W. Neb. ex rel. Freeman Sunday Laws that, granted of our was the ground decision they for. were continued ends, were first enacted a wholly provide in secular, namely, force reasons health and tran- day of rest and ensure the universal government In community. words, of the other quillity for the may originally Sunday day have decreed a rest religion aban- impermissible purpose supporting but per- purpose and retained the laws for the doned secular purpose furthering missible overwhelmingly ends. was the of the Estab

Such evolution contours Engel year There, lishment Clause before Vitale. v. ago, daily state-composed we held that the recital of the Regents’ Prayer constituted an establishment of although because, prayer the itself no revealed sectarian meaning quite content its nature and purpose, were religious. clearly York, authorizing New recita its tion, had not maintained that pub distance between the lic and the sectors commanded the Establish placed ment Clause when it “power, prestige d support government” financial prayer. behin Engel, McCollum, In as in it did not matter expense amount of time and daily allocated to the reci long tation was small so as the exercise itself mani was festly religious. Nor did matter that had few children complained of the practice, for the measure of the serious ness of a breach of the Establishment has never Clause thought been people number of complain who of it. also ago Watkins,

We held two Terms in Tor caso v. that a supra, State not constitutionally require an applicant for the office Notary Public to swear or affirm that he believes God. problem The of that case was strikingly similar to the presented years issue before flag salute case, Virginia West Board Education Barnette, supra. In neither case was there claim of establishment of religion, only but infringement case, that of liberty the one individual’s —in God; to a not attest belief who could the nonbeliever him to whose creed forbade child other, that added a new element flag. Torcaso But salute Maryland test oath involved in Barnette. present non- essentially religious (albeit employ attempt an goal to which sectarian) means to achieve secular relationship. No one doubted no reasonable means bore Public, integrity in its Notaries the interest the State’s appli- the screening not warrant that interest did but Sunday Law means of a test. The by cants respect. Sunday in if were different that Even Cases vestiges, enforced they certain are Laws retain be objectives cannot today essentially secular which society by desig- effectively except in modern achieved Sunday day universal rest. The Court’s nating the selecting or problems cited substantial opinions very teaching enforcing day an alternative rest. But the Sunday govern- Torcaso and Law Cases is that both the religious means to secular may employ ment not serve they may with- legitimate be, however least interests, nonreligious means out the clearest demonstration will suffice.29 principle other

29 See for illustrations of the that where First may government freedoms be affected, Amendment are or must employ those means which will least inhibit constitu exercise of State, Griffin, Lovell Schneider v. liberties, 444; tional v. 303 U. S. Struthers, 161; Martin v. Saia v. 147, 141; New 308 S. 319 U. U. S. York, Tucker, 558; Shelton 479, 488-489; 334 S. v. U. 364 S.U. Books, Inc., Sullivan, Bantam 58, 66, S. v. U. 69-71. See also 372 Sunday Religious Note, State and the Laws Guarantees of the Federal Constitution, (1960); Freund, 73 Rev. 743-745 Harv. L. Supreme 86-87; (1961), Court of the States L. United 74 Harv. Cooper, Miller (1961). compare And v. Rev. 56 N. M. permitted holding P. 2d 520 which a state court building only exercises in a school commencement church public buildings community adequate because no were ceremony. accommodate the

IV. cases us.30 The I to the before turn now challenged plain. here seems the exercises .nature Engel Vitale is to are to overruled, or we be Unless v. sus- engage wholly disingenuous distinction, we cannot question concerning stand No has been raised in these cases challenge ing parents religious practices, of these .to conducted authority presently the schools their children attend. Whatever on of Education, 429, might have remus Board S. U. Do question standing parent of of the of one not the children affected by challenged is not us in these Neither exercises before eases. question was nor in Zorach there reason to in McCollum justi standing parent-plaintiffs principles of of the under settled alleged ciability complaints whether jurisdiction, or not their injury. monetary pecuniary loss The free-exercise claims however, alleged injury give standing. If, parents sufficient them establishment, exclusively gravamen were one of the lawsuit though parent might illogical standing upon seem to confer who— position concededly claim— he is in the best assert a free-exercise .to injury, being parent, suffers no reason of different financial ordinary taxpayer, standing open ques whose According Engel, Sutherland, to 76 Harv. See Establishment tion. 25, (1962). suggest I would several to this L. Rev. 41-43 answers conceptual difficulty. First, parent surely the person is most the immediately directly concerned the chal and about and affected deny standing lenged establishment, and to him in his own either might effectively judicial right on his child behalf of foreclose prohibitions inquiry into serious breaches of the of First Amend the monetary injury though special could See no be shown. ment —even Township, Supp. 398, Schempp Abington District v. School 177 F. of Prayer Fury, 407; Kurland, Regents’ of The Case: “Full Sound and Supreme 1, Second, Signifying ,” the . ... Court Review 22. complaint every challenging far set case thus an establishment-has infringement of free forth at least a colorable claim exercise. When complaint both-claims, frivolous, the includes neither it would and say surely parent who be overtechnical that a does not detail the only monetary may pass cost of the exercises him ask the court to logically upon claim, the free-exercise however two be re l Society supra; Sisters, Raich, Cf. Pierce v. Truax ated. v. and Prayer Lord’s recital of the Daily practices. tain these clearly as quite are Scripture passages reading Clause Establishment of the of the command breaches Prayer Regents’ rather bland daily use was suppose I would Indeed, schools. public York the New are Holy and the Bible Prayer if Lord’s anything, the that, of the present violations and clearly sectarian, more But the more serious. consequently First Amendment long a in these cases have challenged religious exercises reading Bible beginning, almost from the history. And subject been the schools have daily prayer officials, and other by educators debate, criticism councils. At legislative by courts proscription aspects both carefully then, we must canvass oiftset, history. of this readings opening Bible at the prayers and

The use of our founding day long antedates of the school Hopkins New Haven Gram- of the Republic. Rules being the Scholars required School “[t]hat mar Patterson, Alabama ex rel. 357 U. S. 38-39; NAACP v. S.U. Sullivan, 678; Books, Inc., Hood, Bantam v. 458-460; Bell 327 U. S. v. concept standing Finally, the is a neces 58, 64, 372 U. S. n. plaintiffs designed principally sarily one, to ensure that the flexible controversy as to personal stake in the outcome have “such sharpens presentation which concrete assure that adverseness for- illumination of upon the court so Largely issues depends questions Carr, ....’’ Baker 369 U. S. constitutional difficult cursory examination of the com It seems to me that even 186, 204. opinions discloses that these plaints two cases and the below in these against respective very grievances school parents real have adjudi of constitutional cannot be resolved short authorities which Hays generally Arthur Civil Liberties Confer Garfield cation. See Standing Bring Suit, Parochial Aid to Schools ence. Public (1962); Jaffe, Standing Review: to Secure Judicial L. Rev. 35 Buffalo (1961); Sutherland, Due Actions, 74 Harv. L. Rev. 1265 Public Disestablishment, 62 Harv. L. Rev. 1327-1332 Process and Court, Comment, Supreme Amendment, the First and (1949); The Schools, 73, 94, (1963). 63 Col. L. Rev. n. 153 Religion in the Public 268. ton-other, every begin Mr. shall his morning

called blessing a for a on his prayer work with short Laboures 31 learning rigorous pro- and their More was the . . . vision in a contract a Dutch schoolmaster in with York: Flatbush, New begins,

“When school one of the children shall catechism, morning read the prayer, as stands with the before m prayer dinner; close the after- begin noon it prayer dinner, shall with after end evening prayer. with the evening The school shall begin sing- with the Lord’s prayer, by and close ing psalm.” new uniformly After States con Revolution, long-established tinued these practices in private grammar public few schools. The school committee of Boston in example, required the city’s sev eral “daily schoolmasters to commence the of their duties office prayer and reading portion of the Sacred Scriptures.....”33 That requirement was mirrored throughout the original States, exemplified uni practice versal well into the century. nineteenth As the free gradually supplanted private acad schools emies and sectarian schools between 1800 and 1850, morning devotional exercises were retained few alter with ations. Indeed, public pressures upon school adminis many trators in parts country hardly would have condoned of practices abandonment to which a century of private more religious education had accustomed the American people.34 controversy centered, in Dunn, Happened Religious Quoted What (1958), Education? 32Quoted, id., at 22. in Hartford, Quoted Moral Values in Public Education: Lessons Kentucky From the Experience (1958), 31. Culver, See Religion Horace Mann and in the Massachusetts Public Schools for an account prominent of one educator’s

269 fact, principally plainly about the elimination of sec- practices tarian and textbooks, and led to the eventual of nonsectarian, though substitution still religious, exer- cises and materials.35

Statutory provision for daily religious is, exercises of however, quite origin. recent At the turn of this cen- tury, was there but one State —Massachusetts—which a making had law morning prayer reading obliga- Bible or. tory. Statutes elsewhere permitted practices either such simply or left the question to local option, it was not until after 1910 that 11 States, more within a few years, joined in making Massachusetts one or both exercises compulsory.36 The Pennsylvania law with which we are satisfy protests efforts to both the opposed of those who continuation of sectarian lessons public schools, and exercises in demands upon of those who essentially insisted retention of some practices. Mann’s regarded continued use of the Bible for what he represented as nonsectarian exercises response his to these cross- pressures. Mann, Religious See Education, Blau, Cornerstones Religious Freedom in (1949), (from America 163-201 the Twelfth Report Secretary Annual for of the Board of Education Massachusetts). See Boles, Bible, Religion, The also and the (1961), Public Schools 22-27. Stokes, See Church and State in (1950), the United States 572-579; Greene, Religion Making and the Testing State: The of an American (1941), Tradition 122-126. g., Code, 542; E. Ala. Tit. Ann., Code Del. Tit. 4101- § §§ 4102; (2); Fla. Stat. Ann. Laws, 71, §31; Ann. Mass. e. §231.09 (4). recently' Tenn. Code Ann. statutes, 49-1307 Some like the § Pennsylvania amended Schempp, provide statute involved in for exemption the excusal or parents of children whose do not wish them participate. génerally See Yost, Separation Johnson and Church and 33-36; State in the (1948), Thayer, United States Role of Society the School in (1960), 374-375; American Beth, The Theory American Compare Church and State 106-107. statutory approach (3) with the American Article 28 of the Con stitution of India:

“(3) person attending any No recognised educational institution receiving the State or aid out required of State funds shall be case, Schempp example, concerned took effect 1913; the Baltimore Board even Rule School only from In Murray in the ease dates involved statutory no has ever constitutional or State there been against the prohibition prayers reading recital Scripture, although number States have outlawed practices by judicial decision or these administrative about, noteworthy panoply order. is of What the state local regulations emerge and from which cases is the these recency statutory relative of practices codification which have ancient and the small roots, rather number religious States which have prescribed compulsory ever exercises in the schools.

The purposes underlying the and adoption perpetuation practices beyond of these are somewhat complex. It is question that benefits and values realized daily prayer and reading usually Bible have been considered paramount, justify and sufficient con- practices. tinuation such To Mann, Horace em- in controversy broiled an intense over the role sectarian instruction in the public schools, and textbooks Boston question there was that regular little use of the thought essentially Bible—which he nonsectarian —would spiritual enlightenment bear fruit in the pupils.37 his A contemporary Mann’s, Commissioner of Educa- of neighboring tion a State, expressed a many view which enlightened day educators of that shared: a

“As textbook morals the is pre-eminent, Bible and have a prominent should in place schools, our part any religious in may imparted take instruction that be in such' any religious institution worship may to attend that be con- any premises in such ducted institution or'in attached unless thereto person person or, minor, guardian such if such given his has his 1 Chaudhri, Rights consent thereto.” See Constitutional and Limita- (1955), 876, tions supra. See note and reading appeal as a book or as

either a.source should not be Sectarianism, indeed, instruction. in but the Bible is not schools; countenanced Scriptures sectarian should least .... Prayer if school, at the no more. opening read happiest also be with the effects.” offered writing of Public Superintendent Instruction, Wisconsin’s years few later reflected attitude of his he colleagues, regarded special eastern “with favor the use of Bible public schools, pre-eminently among first in importance .teaching text-books for principles noblest virtue, morality, patriotism, and good charity good order —love reverence will God— to man.” understanding Such statements reveal the of educators daily exercises the schools served goals compelling broader than formal worship of God or fostering church attendance. The aims of the adopted who educators retained such exercises were comprehensive, many quite cases sec- devoid of tarian the crucial they bias —but fact is that none- were religious. it theless has suggested, While been see pp. daily 278-281, infra, prayer that reading Scrip- and goals ture well, now serve secular as there can be no origins doubt that the practices these were unam- religious, biguously even where the educator’s aim was particular to win adherents to a creed or faith. from the beginning religious Almost in exercises public the schools been have the subject intense vigorous and criticism, debate, judicial or administrative prohibition. Significantly, educators and school boards 38 Hampshire from New Reports, 1850, 31-32, School Qiioted in. Kinney, Church and Struggle Separation State: The in New Hampshire, 1630-1900 157-158. Boyer, Religious in Pupils Quoted Education Public School Wisconsin, in . Wis. L. Rev. 186 legality the and the

early entertained doubts about both day with compulsory the school opening soundness of in reading. large the Eastern prayer Particularly or Bible immigration public cities, exposed where had schools diversities conflicts unknown to the homogeneous eighteenth century, academies of the local necessary authorities found even before Civil War Philadelphia seek an accommodation. In adopted following School Board resolutions: “RESOLVED, be required that no children attend (cid:127)’or reading unite Bible Schools, Public' are parents conscientiously whose opposed thereto:

“RESOLVED, that parents those children whose conscientiously prefer particular desire Bible, version of the note or comment, without be furnished with same.” A later; Superintendent decade Schools New York State an issued even prayers bolder decree that could longer required no part school activ d ities, an King where the James read, Bible was Catholic compelled students could not be to attend.41 This type of accommodation was not restricted to the East Coast; the Cincinnati Board of Education resolved in 1869 “religious instruction the reading of reli gious books, including the Holy Bible, prohibited are the common schools of being Cincinnati, it object true and intent of this rule to children parents allow of all sects and opinions, faith matters of worship, Dunn, Happened Quoted What to Religions ? Education (1958), 271. 41 Butts, Quoted Religion American Tradition in and Edu cation (1950), 135-136.

273 42 alike enjoy to the benefit the common-school fund.” repealed the an earlier regulation The Board at same time required singing hymns psalms which had the reading at start of accompany Bible the school day. And in 1889, one commentator ventured the view enough that is read- gained to be Bible “[t]here ing oyer it.”43 justify quarrel that has been raised great religion

Thus' deal of over in the controversy public over Blaine preceded schools had the debate Amendment, precipitated by Grant’s President insistence matters of “to family be left altar, should church, supported entirely by the private school, 44 private ample precedent, contributions.” There was too, for Theodore Roosevelt’s declaration that in the of “absolutely interest nonsectarian schools” our was “not business to have the Protestant Bible or Vulgate Catholic or the Talmud read those schools.”45 principle The same appeared message in the of an Ohio who Governor vetoed a compulsory Bible-reading bill 19251 my

“It religious teaching in our belief homes, Sunday schools, churches, by good 42 Board Minor, 211; See Education v. Blakely, 23 Ohio St. Papers State American and Related on Documents Freedom in Re ligion (4th 1949), rev. ed. 864. 43Report of the United States Commissioner Education for the 1888-1889, part I, Year 1, part 5; H. R. Exec. Doc. Cong., No. 51st 1st Sess. 627. 44 McCollum, Quoted in Education, Illinois ex rel. Board supra, (opinion J.). 218 Frankfurter, See President also Message Annual Congress, Grant’s Cong. Dec. Rec. seq., inspired apparently drafting et submission Meyer, Comment, Blaine Amendment. See The Blaine Amend ment the Bill of Rights, (1951). 64 Harv. L. Rev. Schaap, Theodore Roosevelt 22, 1915, to Michael A. Feb. (Morison Letters of Theodore ed.1954), Roosevelt 274 prefer- and ministers of Ohio is far

mothers, fathers, teaching religion by of compulsory state. able of our and state spirit The federal constitutions beginning . . . been to leave [has] 46 parents.” instruction to of the discretion The- same has recurred in the opinions theme Attorneys holding General of several States exer- cises or to be in violation of the state or federal instruction separation constitutional command of church principle upon state.47 Thus the basic which our deci- year Engel sion last necessarily v. Vitale rested, which we today, hardly reaffirm can thought to be radical or novel.

Particularly purposes relevant our are the decisions of the state courts on questions public schools. decisions, Those not, while authorita- course, in this tive Court, serve prob- nevertheless to define the lem before guide us and our inquiry. growth With the diversity and the of vigorous rise dissent it was inevitable that the courts would upon be called enjoin religious practices in the schools which offended certain and groups. sects The earliest such decisions declined propriety to review the of actions taken by school long so authorities, those actions within were 46 Boles, Bible, Religion, and the Quoted Public Schools (1961), 238. g., E. Op. Atty. 67; Op. Atty. Ariz. Gen. 26 Ore. Gen. 46 (1952);. Op. Atty. (1955); Cal. Atty. Gen. 316 1948-1950 Nev. Rep. (1948). Gen. opinion For Attorney a 1961 General Michigan effect, to the same see 63 American Jewish Yearbook (1962) In 189. addition 46, supra, Ohio, to the Governor see note proposed Governor of Arizona vetoed a per law which would have' “reading mitted Bible, comment, except without to' teach Histori Literary cal or 2 Stokes, facts.” See Church and State in the United States purview powers.48 the administrators’ where Thus,

the local school board required religious exercises, courts would not enjoin them;49 and as in at where, least one case, the school officials practices, devotional forbade grounds the court refúsed on similar to overrule that decision.50 whichever Thus, way early up, cases came governing principle of nearly complete deference to effectively administrative discretion foreclosed con- sideration of questions. constitutional

The last of quarter century nineteenth found the beginning courts question constitutionality public school legal exercises. The context was that of still, course, state constitutions, since the' First Amendment had yet been held applicable to action. And state prohibitions constitutional state against cooperation governmental church-state aid to religion generally rigorous were less than the Establish- ment Clause the First Amendment. It is therefore courts of a remarkable half dozen States found compulsory religious. exercises in public schools respective of their violation state constitutions.51 These 48 Yost, Separation See Johnson and of Church and State in the (1948), 71; Note, Reading, Schools, United-States Bible in Public 9 (1956). 849, 851 Vand. L. Rev. 49 g., Spiller Woburn, E. v. Inhabitants (Mass.) 12 Allen 127 Richards, (1866); Donahoe v. 376, (1854); cf. Ferriter 38 Maine 413 Tyler, 444, (1876). v. 48 Vt. 471-472 50 Minor, Board Education v. (1873). 23 211 Ohio St. 51 People Ring Education, ex rel. v. Board 334, 245 Ill. E. 92 N. Directors, Herold v. Parish Board (1910); 251 136 La. of School State ex rel. Weiss v. District 1034, (1915); Board; 68 So. 116 76 Finger Weedman, State ex rel. 177, (1890); Wis. 44 N. 967 W. v. 55 State ex 343, (1929); Frazier, rel. Dearie S. D. 226 N. 348 W. v. Showalter, State ex 369, (1918); rel. Clithero v. Wash. P. cf. Scheve, State ex 519, (1930); Freeman 159 Wash. 293 P. 1000 rel. (1902), modified, 65 Neb. 91 N. W. 846 65 Neb. clearly religious to the significance much attributed courts challenged practices, and to and content of the origins controversy in their avoiding sectarian impossibility in 1910 expressed Supreme Court conduct. The Illinois characterized these decisions: which principles supported by the taxes public school is “The lack of regardless it, of his or his citizen, each government, like the compelled pay. school, is is and not simply secular, is civil institution. It Bible are religious, purposes. its The truths the truths of which do not within the religion, come . one denies province school. . . No they taught youth should be to the of the State. The constitution and law do not with interfere the. they theological but do teaching, polem such banish ics the schools and the school districts. This done, any hostility not from religion, but part duty because is no of the State to teach religion, take the of all money apply toit —to teaching the children of all of a part, . only. Instruction in religion must voluntary.” Ring ex People Education, rel. v. Board 245 Ill. of 334, 92 349, (1910). N. E. 256 251, Supreme The of Court South Dakota, banning devo tional exercises from schools of State, also cautioned that state as an educator must keep “[t]he out field, this and especially is this true the common 'schools, where the child is immature, without fixed reli gious convictions.....” State ex Finger rel. v. Weed man, 343; 55 S. D. 357, 226 N. 348, (1929). W. 354 (1903). N. W. 169 The cases are Boles, Bible, discussed in The Religion, and the (1961), IV; Public Schools Harrison, c. Bible, The the Constitution and Education, Public 29 363, Tenn. L. Rev. 386-389 (1962).

277 Even those state courts which have sustainéd devo- usually recog- tional under law52 have exercises state primarily religious prayers nized the character of readings. practices Bible If such for rea- . were not state; son unconstitutional, necessarily it was because the only constitution forbade public expenditures for sec- tarian which made the instruction, activities school- house a- of. “place worship,” nothing but said about question “respecting subtler of laws an establishment 53 religion.” Thus panorama history permits no 52 Monroe, (1884); Moore 367, 64 Iowa 20 N. W. 475 Hackett District, Ky. v. Brooksville 608, Graded School 120 87 S. W. 792 (1905); (1904); Education, 53, Billard v. Board 69 Kan. 76 P. 422 Education, (1898) 560, ; v. Board 118 Mich. 77 N. W. 250 Pfeiffer Kaplan District, 142, (1927) ; v. School 171 Minn. 214 N. 18W. Education, Supp. Lewis v. Board 520, 157 164 Misc. 285 N. Y. (Sup. 1935), grounds, App. 106, Ct. modified on other 247 Div. 286 Supp. (1936), appeal N. dismissed, 490, Y. 174 12 276 N. Y. N. E. (1937); Education, 2d 172 435, Doremus v. Board 5 N. J. 75 A. (1950), appeal 2d dismissed, 429; Bullock, 880 342 U. S. Church v. 1, (1908); People Stanley, Tex. 109 S. 115W. ex rel. Vollmar v. 276, (1927); City 81 Colo. Rome, P. 610 Wilkerson v. 152 Ga. 762, (1922); Bland, 110 S. E. 895 665, Carden v. 199 Tenn. 288 S. W. (1956); County 2d 718 Chamberlin v. Dade Board Public Instruc tion, (Fla. 1962). 2d 21 So. 53For statutory provisions discussion of the constitutional involved in the state cases which sustained devotional exercises in public schools, Boles, Bible, Religion, see The and the Public Ill; Schools Harrison, Bible, c. the Constitution and Education, 363, Public (1962); Fellman, 29 Tenn. L. Rev. 381-385 Separation Summary of Church and State the United States: A View, 427, 450-452; Note, Wis. L. Reading Rev. Bible Schools, (1956); Public 9 Vand. Note, L. Rev. 854-859 Nine Century Thought Concerning teenth Judicial Church-State Rela tions, (1956). appear Minn. L. Rev. 675-678 State courts increasingly to have been sustaining prac influenced in devotional by availability exemption tices of an dissenting excuse or for stu Holy dents. See The Cushman, Bible Schools, and the Public 40 (1960). Q. (1955); 475, Cornell L. 477 13 Vand. L. 552 Rev. read- daily than that and Bible prayers other conclusion designed have been ings always schools regarded as, essentially religious and be, have been exer- closing laws, cises. these exercises Sunday Unlike appear neither have from their been divorced origins nor of deprived centrally their character by Maryland, cf. passage time,54 McGowan v. might supra, at 442-445. alone we On this distinction con-, well rest a constitutional decision. But three further tentions pressed argument have been in the of.these cases. These for if the consideration, contentions deserve careful position respect of the school authorities were correct we them, misapplying principles would be. Engel v. Vitale.

A. First, argued clearly religious may that however origins early have daily prayer been the and nature practices today Bible so reading,-these clearly serve secu- lar purposes educational that their attributes may be overlooked. I not doubt, example, do morning devotional exercises foster better discipline classroom, in the the spiritual elevate level on which day opens.- the school Pennsylvania Superintendent The of Public Instruction, testifying by deposition in the Schempp case, offered his view daily Bible read- ing “places upon the or hearing children read- those ing this, atmosphere goes and the on reading . . . one the last vestiges 'value moral Rosenfield, Separation See Church and State in the Public Schools, 561, (1961); L. U. of Pitt. Rev. 571-572 Harrison, The Bible, Education, Constitution Public 29 Tenn. L. Rev. (1962); (1962); 399-400 30 Ford. L. Rev. 45 Va. L. Rev. (1959). essentially religious character of the materials used is, fact, strongly suggested by presence these exercises of excusa! exemption provisions, practice rotating or alter nating prayers Holy the use of different and versions of the Bible.

279 The exercise system.” school left our that we have strong “a concluded, Superintendent thus the affords, our time.” materialistic trends to the contradiction expressed simi Schools Superintendent Baltimore’s Murray case, challenged the practices of the lar view acknowledgement the existence to that the effect “[t]he exercises establishes symbolized opening in the God each tends to cause individual discipline tone which con consequently constrain his overt acts and to pupil to accepted during, form to standards of attend behavior his no by novel, see, ance at school.” These views are means Education, e. g., 57-58, Billard v. 69 Kan. 53, Board of (1904).55 76 P.

It is not the gainsay business this judg- Court the experts ments of on matters of pedagogy. Such decisions must be left to the discretion of those administrators charged with the supervision of the public Nation’s province schools. The limited courts the is to deter- mine whether means which the the educators have chosen legitimate to achieve pedagogical infringe con- ends the stitutional freedoms of First Amendment. The secu- lar purposes which devotional exercises are said to serve fall two categories into depend an upon —those immediately religious experience shared partici- pating children; appear and those which sufficiently from religious divorced content the devotional they material that can served equally by nonreligious case, Prayer In the Billard teacher whose use Lord’s Twenty-third and the was court Psalm before the testified disciplinary served spiritual purposes: exercise than rather necessary general “It to have some exercise after the children playground prepare come in them their You work. general quiet need some exercise to them down.” again purpose if partially religious, When asked were not at least replied, the teacher was to the children that reli- are “[i]t gious, Kan., and to others not.” 57-58, it was at P., has first much respect objective, With to the

materials. spiritual moral and values been written about into the influence or instruction infusing some only reli- To extent school .classroom.56 me gious materials will this seems purpose, serve plainly means is so purpose that the as well as the the Estab- necessarily by is forbidden that the exercise benefits purely lishment The fact secular Clause. that justify to the may eventually does not seem to me result could nonreligious indirect benefits exercises, for similar program been claimed for the released time no doubt have in McCollum. invalidated exer- justification religious assumes that

The second directly serve day may of the school cises at the start harmony by fostering solely example, secular ends—for authority enhancing among pupils, the and tolerance To discipline.. teacher, inspiring of the and better content of result not from the extent that such benefits holding from the readings recitation, simply but assembly or opening a solemn exercise at the of.such that less sensi- day, the first class of the it would seem purpose. might equally materials well serve the same tive suggested Sunday and the previously I have that Torcaso religious sec- Law Cases forbid the use of means achieve g., Henry, Religion See, e. The Place of in Public Schools (1950); Martin, (1952); Our Public Schools —Christian or Secular Assn., Policies of the National Educational Educational Comm’n IV; Spiritual (1951), Values in the Public Schools c. Ear Moral and (1949). ner, Religion’s Place in General Education Educators are question. Boles, by unanimous, however, on no means See this Bible, Religion, Compare Public and the Schools 223-224. Washington’s George in his advice Farewell Address: indulge supposition, morality “And let us with caution can religion. without Whatever be conceded to the be maintained peculiar structure, on minds influence refined education reason experience expect morality both us forbid that National can prevail religious principle.” Writings George in exclusion of Washington (Fitzpatrick 1940), 229. ed. That will suffice. nonreligious means where

ular ends been has not cases. It readily applied these principle messages of readings speeches from the shown that documents or from the example, Americans, great Pledge daily recitation heritage liberty, our of a moment of observance or even the of Allegiance, not ade- class, may opening reverent silence of the devo- solely purposes secular quately serve either the jeopardizing without tional activities or community proper members of the liberties of spheres degree separation between think, I be unsat- would, government.57 Such substitutes present that the inadequate only to the extent isfactory or I do religious goals. do in fact serve While activities experienced judgment educators question secular challenged practices may well valuable achieve unconstitutionally- that the acts ends, it seems to me State indirectly if sets about to attain even it either if religious means, it uses means to ends secular suffice. serve secular ends where means would

B. -argued is that Second, particular practices it unobjectionable involved the two cases before us are 57 judgments young Thomas Jefferson’s insistence that where the of sufficiently religious inquiries, not children “are matured for their Grecian, memories here be stored with the most useful facts from Roman, European history,” Writings and American 2 of Thomas Jef (Memorial 1903), 204, proposals ferson ed. is relevant here. Recent explored possibility commencing day have of the school “with a quiet playground moment that would still the tumult of the and start day study,” Editorial, Washington Post, 28,1962, A, p. 22, of June § Times, Aug. 30, 1962, 1, p. 18, col. 2. also New See York col. 2. § For proposals a consideration of these and other alternative see Religion Choper, Proposed in the Public Schools: A Constitutional Standard, 329, (1963). 47 Stokes, Minn. L. Rev. 370-371 See also 2 Church and State in the United States 571. sect or at the prefer particular

because no sects ex- thej Abington pro- Baltimore pense of others. Both the and of reading any several example, cedures permit, Bible, flexibility versions of the and this is said ensure neutrality sufficiently prohi- to avoid constitutional the. is answer, might dispositive, bition. One inherently sectarian, the Bible else there is version system would be no need to offer a or alterna- rotation tion place, is, versions first to allow different sectarian versions to be on The sec- days. used different tarian Holy character has at the core of Bible been controversy religious practices whole in the over throughout schools its history.58 and often To long bitter history, particularly upon The as bears the role sectarian concerning interpretation, differences Biblical and has been sum texts Education, 31, 36-44, marized in Tudor v. Board N. J. 100 A. 857, Board, 2d 859-864. See also State ex rel. Weiss v. District 177, 190-193, 967, Wis. 44 N. W. One court 972-975. state adverted ago: century to these a half differences Bible, entirety, “The its sectarian book to the Jew as every any religion religion, believer other than the Christian as to regarded those who are heretical or who hold beliefs that are necessarily its use orthodox ... in the schools results sectarian many instruction. There are of Christians, sects and their differences grow differing out parts Scrip of their constructions of various of the tures —the different conclusions drawn as to the effect same portions words. Scripture which form the basis of these thoughtfully intelligently sectarian differences cannot be read impressing favorably reader, without otherwise, with reference supposed to the People doctrines to be derived from ex them.” rel. Ring v. Education, Board 347-348, 245 Ill. 92 N. E. sharply see, But comment, Schofield, Religious for a critical Lib erty Reading Schools, Bible in Illinois Public Ill. L. Rev. 17 (1911). Dunn, Happened Religious See also What (1958), Education? 268-273; Dawson, Way Church, State, Society America’s (1953), 53-54; Yost, Separation Johnson and Church State the United IV; Harpster, States c. Religion, Education and schools Abington and Baltimore as the the version vary than to read may well less offensive done have practice. once was the every day, as James version King relatively benign procedure result even of this But the approximate propor- majority preferred sects are and in the community in the representation their tion to sects commensurate body, while the smaller suffer student of the exer- long subject So as the matter discrimination. cannot in character, consequences sectarian these cise is be avoided. flaw. basic argument contains, however.,

The more deeply persons every community are There —often whom of the Judaeo-Christian any devout —to version for reverence is offensive.59 There are others whose Bible or Holy Scriptures private study demands reflection sacrilegious, public reading whom or recitation is expert Schempp at the trial of as one of witnesses using persons To it is not the fact of explained. case such any par in the nor the schools, the Bible content version, offensive, only ticular that is but the manner Marquette Law, 24, (1952); L. J. L. 44-45 20 Ohio State Rev. (1959). 701, 702-703 Watkins, supra, Torcaso Cushman, 495, 11; See n. Holy Schools, Bible and Public 40 Cornell 480-483 L. Q. (1955); Separation Religious Note, Exercises in of Church and State: Schools, (1962). 411-412 Few reli U. Cinc. L. Rev. today gious persons universality of the Biblical would share Quincy of John Adams: canons my

“You ask me what Bible I take as the faith —the standard Hebrew, I English translation, what? Samaritan, the old or upon any answer, containing Bible the Bible the sermon the mount — I read and I can understand. ... take one of them trans- Priestley my of faith. fair standard If Socinus had made a Bible, lation that, I com- would have taken but without their Quincy Adams, 3, 1817, John in Koch ments.” Adams to John Jan. Peden, Writings Quincy Adams of John and John .Selected (1946), 292. which it is For persons, such the anathema of used.60. public is pronounced prayer communion even more when Many is deeply persons always involved. devout have regarded prayer necessarily as a private experience.61 One Protestant group recently commented, example: for one thinks prayer “When as sincere outreach a Grayzel Rabbi Court, Solomon testified before the “In District read, special Judaism the Bible not is is studied. is There no virtue reading Bible; great attached to a mere is there a deal of study Bible, virtue attached to Boles, of the Bible.” See The Religion, (1961), 208-218; Choper, Religion and the-Public Schools Proposed A Standard, Schools: Constitutional 47 Minn. the.Public (1963). 329, religious L. 372-375 periodical suggested Rev. One has danger likely that “an observance of is this sort to deteriorate quickly empty formality little, spiritual into an any, sig with if sort, many colleges nificance. Prescribed forms of this have con years compulsory cluded chapel attendance, actually after can against religion.” work Prayers inculcation of vital in Public Opposed, 9, Schools Century, 1952, p. 69 Christian Jan. 61 Cahn, See Prayer, On Government and 37 Y.N. U. L. Rev.

993-994 A leading journal recently Protestant (1962). noted: “Agitation for practices public removal schools is prompted supported entirely by humanists, Jews, and atheists. At both levels, many local and leaders, national Christian concerned rights both adequate for civil of minorities and for educa- tion, opposed public are to Many exercises in schools. . . . persons, both Jews and Christians, prayer believe that and Bible reading permitted spite are too sacred be schools in possible of their Smith, Religious value.” moral Crisis In Our Schools, Episcopalian, May 1963, pp. 128 The g., See, 12-13. e. other recent question, Editorial, statements on this Amending the Amendment, May p. America, 25, 1963, 736; Sissel, A Christian Against Fight View: Behind Prayer, 27 Look, School June 1963, p. 25. unnecessary It should to demonstrate Prayer, that the Lord’s more clearly Regents’ Prayer than the Engel Vitale, involved ih is an .

essentially supplication g., Christian See, Scott, e. The Lord’s Prayer: Character, Its Purpose, Interpretation 55; (1951), Buttrick, Believe, Pray So We We 142; Levy, So Lord’s Prayer, in 7 Encyclopedia (1948), Universal Jewish 192-193. ‘required prayer’ becomes an Creator, human to the soul respect with problem absurdity.” There similar are Scripture upon passages comment thé and this present comment, statutes forbid be read. Most many religious groups accords with the views practice in which the Bible should be read. as to the manner discloses, scriptural passages as However, survey a recent no convey message comment frequently read without children in school. Thus there has younger to the bridging gap a developed practice some schools by of “defini understanding between faith means by tions,” where “comment” is forbidden statute.63 even present poses a difficult dilemma: practice The therefore universally required to be reading While Bible is almost by a can comment, only prohibition such without since classroom, from the interpretation sectarian be excluded 62 Affairs, Baptist Joint Committee on Public Statement of (1962). 4 Church and 144 J. State 63 Education, Bible, Public Harrison, The the Constitution and See 363, (1962). application The L. of statutes and 29 Tenn. Rev. 397 scriptural passages regulations comment on is further which forbid reading complicated by religious groups of certain that the view actually meaningless Com is either or offensive. without comment testimony pare Grayzel’s before District that “the Court Rabbi explanation.” A when it is taken without Bible is misunderstood survey concern recent the attitudes of certain teachers disclosed regarding any pupil questions “refusal answer curricular to activity reading educationally sound,” and that without com is not impression might pupils ment in the create minds Religion, wrong.” Boles, Bible, something was “hidden or Compare comment of a Public 235-236. Schools learning expect foreign “In other field of would we a observer: no meaning full he reads without accom child to draw the from what panying explanatory comment the teacher will comment. But personal preferences; inevitably his and the exhibition of reveal own ” MacKinnon, seeking Free preferences is we to eliminate. what are ? The Problem of Church and State the' dom ?—or Toleration Unitéd States, ^[1959] Pub. Law point rudimentary- down at the at which

the rule breaks comprehen- of Biblical terms are necessary definitions meaningful sion if the exercise is to at all. been, suggested

It that a has tentative solution' to these fashioning lie in the problems may a “common core” theology preferential tolerable all creeds but none.64 recently observed, But one commentator has “[h]istory encouraging to” is not those who to fash hope of religion ion “common denominator from its detached any organized manifestation Sutherland, church.” Engel, According Establishment L. Harv. Rev. (1962). Thus, notion of “common core” lit supplication many deeply offends devout wor shippers clearly practices object who do not find sectarian expressed ionable.65 Father Weigel recently Gustave has A Abbott, 64 See Common Schools; Bible Reader for Public Religious Albany (1961); Note, Education 20 L. Rev. 156-157 (1958); Stokes, (1950), Church and State in the United States (describing 501-506 the “common denominator” or “three faiths” plan programs designed and certain implement of to instruction approach). attempts “common core” universal, to evolve a prayer by g., See, nondenominational are no novel. e. means Madi Everett, son’s letter to Edward 1823, commenting upon March “project prayer a of a . . comprehend . intended to & conciliate College every denomination, by Students of Form [Christian] a com wholly posed phrases scripture.” Writings of texts & James (Hunt 1910), description Madison ed. For a fuller of this attempts and other to fashion a “common core” nonsectarian exercise, Engel Vitale, 659, 660-662, see 18 Misc. 2d 191 Y. S. N. 453, 459-460. 2d policy recently See the by statement drafted the National Coun cil Churches of Christ: neither good "... true nor dependent upon education devotional use the Bible public program. Apart-from school questions . . . the constitutional attempts involved, to religious establish a core’ 'common to beliefs taught public purpose be schools for the are indoctrination Major groups unrealistic and agreed unwise. faith have not on a religious formulation they beliefs common to all. Even if had widely sepa shared view: “The moral code held each community reductively can but religious unified, rate be particular the consistent wants no such reduction.” believer And, 66 as the American on Education Council years ago, warned several “The notion a common core suggests watering down of the point several faiths appear. might where common essentials easily This lead to a new sect—a school sect—which take would place alongside existing its and compete faiths with 67 Engel them.” is surely authority that nonsectarian religious practices, equally with sectarian exercises, violate the Establishment Clause. if Moreover, even the Estab lishment Clause were oblivious nonsectarian practices, I think it quite likely that the “common core” approach would sufficiently objectionable many groups to be foreclosed by prohibitions of the Free Exercise Clause.

C. A third element is said to practices absolve the involved these cases from the ban of the guar- antees of the Constitution provision is the to excuse or exempt students who wish not to participate. Insofar practices these are claimed to violate the Establishment so, body done such a doctrine would tend to become a substitute demanding the more commitments of historic faiths.” Washington Post, May 25, 1963, A, p. 1, Choper, col. 4. See also § Religion in the Proposed Public Schools: A Standard, Constitutional 329, 341, (1963). Minn. L. Rev. 368-369 Hartford, See also Moral Values in Public Kentucky Education: Lessons from Experience 261-262; (1958), Moehlman, Separation The Wall of Between Church and State Mosk, 158-159. Cf. Clause” “Establishment Clarified, 22 Law in (1963). Transition 235-236 Kurland, Regents’ Prayer The Quoted Case: “Full of Sound Fury, Signifying and .,” Supreme . . (1962), 1, Court Review 31. Harrison, Bible, Quoted the Constitution and Edu Public cation, (1962). 29 Tenn. L. Rev. Dawson, See also America’s Way Church, State, Society (1953), 54. gave I find answer which the District Clause, Court altogether dispositive: our Schempp after remand pupils, theoretically “The fact some all that pupils, might be from attendance at the exer- excused mitigate obligatory cises does not nature of the ceremony The exercises are held in the school .... buildings perforce are conducted and under authority local school authorities and dur- ing school sessions. Since the statute requires the reading 'Holy Bible,’ document, Christian practice, we said our first opinion, prefers the religion. Christian The record demonstrates it that was the intention of the General Assembly of the Commonwealth of Pennsylvania to introduce religious ceremony into public schools of the Commonwealth.” 201 F. Supp., Thus the short, and to me sufficient, is answer availability of excusal or exemption simply has no rele- vance to the establishment question, if it is once found practices these essentially, religious are exercises designed at least in part achieve through aims public the use of school facilities during the day. school The more difficult question, however, is whether availability of excusal for the dissenting child serves to refute challenges to practices these under the Free Exer- cise Clause. enough While to decide these cases to dispose of the establishment questions, questions of free inextricably exercise are so interwoven history into the present status practices these as to justify disposi- tion of aspect this second excusal issue. The answer is that procedure excusal itself necessarily operates way such a as to infringe the rights of free ex- ercise those children who wish to be excused. We have held in Barnette Torcaso, respectively, that a State may require neither school students nor candidates for an profess office of trust to beliefs offensive to religious principles. By same could token State a constitutionally require profess student to publicly his disbelief prerequisite as the to the of his con- exercise right apart stitutional And abstention. from Torcaso Barnette, I Speiser Randall, think 357 U. S. suggests further answer. We held there that a State may not grant condition the of a tax exemption upon the willingness of exemption those entitled to the to affirm loyalty their though to the Government, exemp- even tion grace was itself a matter of rather than of constitu- tional right. impose We concluded that to upon the eligible taxpayers the burden of proving affirmative their loyalty impermissibly jeopardized the engage freedom to in constitutionally protected activities close to the area to which loyalty oath Speiser related. v. Randall seems to dispose me to aspects two of the excusal or exemption procedure now before us. requiring First, what tantamount eyes of teachers and school- mates profession to a disbelief, or at least of noncon- formity, procedure may well deter those children who do not wish participate upon reason based dictates of conscience from exercising an indisputably right constitutional to be excused.68 Thus the excusal testimony See the Schempp, of Edward L. the father of the chil Abington dren in the plaintiff-appellee schools in No. con cerning his asking for not reasons that his children be excused from morning exercises after through excusal was made available amendment of the statute: originally objected being exposed “We to our children to the read-

ing King James version of the Bible . . . and under those theoretically conditions we would have liked to have had the children penalty excused. But we having felt that our children labelled as ‘odd balls’ before every their teachers day and classmates in the year satisfactory even problem. was less than the other . . . children, Roger “The the classmates of very and Donna are liable lump particular to label objec- all difference or operation subjects in its them to di- provision cruel may well consequence, In devout children lemma. even claiming right simply partici- their avoid continue them of an under- pate in distasteful exercises because stigmatized atheists or standable reluctance to be simply request. on basis of nonconformists their all exemption Such reluctance to seek the more seems likely of in view the fact that children are disinclined at age step “peer-group

this out of line or flout norms.” widely experts Such is the held view who have studied the behaviors and attitudes children.69 is also This atheism, today particularly, tions as the word is so often ‘atheism’ communism, very tied to atheistic and atheism has connotations bad many today.” in the minds children and adults opinion Attorney gave A recent General of as one California finding reason for devotional exercises the'likelihood unconstitutional by during forced conscience to leave such the room “[c]hildren placed position exercises would be in a inferior to that students adhering religion.” Op. Atty. to the State-endorsed 25 Cal. Gen. 316, (1955). 319 Other this question, possible views on and effects procedure, Rosenfield, Separation of the excusal are summarized in Schools, of Church and 561, State the Public 22 L. U. of Pitt. Rev. (1961); Note, Separation Religious 581-585 of Church and State: Schools, (1962); Exercises in 31 408, Note, U. of L. Rev. Cinc. 416 353, (1960). 62 W. Va. L. Rev. 358 69 'testimony by Extensive concerning behavioral scientists practices upon effect of similar children’s attitudes behaviors is and Education, 31, discussed in Tudor v. Board 50-52, 14 N. J. 100 857, Religion A. 2d Choper, 867-868. See also in the Public Schools: Proposed A Standard, Constitutional 47 Minn. Rev. L. (1963). appear reported experiments There to be no which bear directly upon question have, under consideration. There how ever, experiments susceptibility been numerous which indicate the school peer-group pressures, especially important children to where group See, norms and values g., Berenda, are involved. e. Group Judgments Influence of the on the (1950), 26-33; of Children Argyle, Situations, Social Pressure in Public and Private 54 J. Ab Psych. (1957); normal & Rhine, Social cf. The Effect Peer Mr. Frankfurter’s to a similar the basis of Justice answer the McCollum case: contention made in “That a child is offered an alternative reduce constraint; operation not eliminate the it does influence the school matters sacred to con- science and outside the domain. school’s The law of imitation and an operates, non-conformity is not Group Upon Concept-Attitude Development Influence Change, Psych. (1960); French, Levinger, 51 J. Social Morrison and Affecting Coercive Conformity, Power and Forces 61 J. Abnormal Psych. (1960). important experi- and Social For a recent study susceptibility mental of students to various factors environment, Zander, Rosenfeld, the school see The In- Curtis and Aspirations (U. fluence of Teachers Peers on of Youth S. Office Cooperative Project 451, 1961), of Education Research No. 24— apparent susceptibility 78-79. It is also that the of school children prestige suggestion social influence within the school environ- inversely age, grade level, consequent ment with the and varies degree sophistication child, Gordon, of of the see Patel and Some Yielding Influence, Personal and Situational Determinants of to 61 Psych. 411, (1960). J. Abnormal and Social Experimental findings flight upon probable also shed some the provision usually when, case, effectiveness of a for excusal the is percentage wishing participate the of the class not to in the exercises very demonstrated, It been example, small. has that in depart overtly strong group dissent clination even adults or norms, proportionately dissenting group— with the size of the varies ;s, inversely apparent perceived strength that with markedly slighter norm itself—and is in the case of the sole or iso g., Asch, Independence See, lated e. and Con dissenter. Studies formity: Minority Against Majority (Psych. A One I. a Unanimous Monographs 416, 1956), 69-70; Asch, Group No. Effects Pressure upon Cartwright Judgments, Distortion of the Modification and (2d 1960), Zander, Group Dynamics 189-199; ed. Luchins and Luchins, Conformity True and False Communications, On With J. Psych. (1955). important findings ques Recent Social on these Hare, Group tions are summarized Handbook of Small Research (1962), c. II. children. The result

outstanding characteristic of upon children to attend.” pressure is an obvious S., at 227. U. years than 70 apposite given

Also is the answer more argument ago by the Court of to the Supreme Wisconsin an a school devotional provision excusal saved exercise from constitutional invalidation: fel- pupil

. . the excluded loses caste with his regarded aversion, and is liable to be' with lows, is a subjected reproach and insult. But it argument prac- sufficient refutation question destroy equality tice in tends pupils which the seeks to establish and constitution protect, puts portion a of them to serious dis- others.” advantage many ways respect with to the State ex rel. District District Weiss v. Board School 8,No. 177, 200, 76 Wis. 44 N. W. years ago

And 50 was Lou- like answer offered isiana Supreme Court:

“Under such would be circumstances, children excused from opening exercises . . . because of their excusing beliefs. And such children on religious grounds, although the excused number might very small, preference would be distinct favor of the majority, beliefs would work a discrimination against those who were excused. pupil The exclusion of a under such cir puts cumstances him in a by himself; class it sub him jects to a stigma; and all because his religious belief. Equality public education would destroyed by such act, under a Constitution which seeks to equality establish freedom in Herold matters.” v. Parish Board School Direc tors, 136 La. 1034, 1049-1050, 68 So. 116, 121. See also Tudor Education, v. Board 31, 48-52, N. J. County Orange Brown v. 857, 867-868; 2d 100 A. Instruction, 181, 2d 128 So. Public Board (Fla. App.). ato further answer suggests also

Speiser Randall It has been procedure. on the excusal argument based ought Board, Schempp, we suggested by the School challenge appellees’ constitutional pass upon not themselves of children have availed least until their to redress procedure inadequate found excusal to be not itself right excused grievances. Were about this stature, I have doubt might some constitutional held that the constitutional vice Speiser we issue. But obligation procedure discharged oath loyalty challenging the constitution- exemption before seek have de- might which it been ality upon of the conditions one Similarly, have held that nied. at 529. we S., 357 U. constitutionally a permit to distribute apply need literature, Griffin, Lovell v. S. U. protected Collins, a Thomas v. 323 U. S. before speech, deliver licensing constitutionality system may he attack the is patent. of which the defect Insofar as these cases im- establishment, to me plicate only questions it seems availability of an irrel- constitutionally that the excuse Moreover, procedure evant. the excusal seems to me to operate way discourage as to free such exercise part might on the of those who wish to utilize rendering it, thereby it unconstitutional an additional quite respect. distinct my To summarize concerning views the merits of these cases; history, two the purpose operation and the daily prayer reading recital and Bible leave no doubt practices standing by that these themselves constitute an impermissible breach of the Establishment Clause. Such devotional exercises well legitimate serve nonreli- extent, To gious purposes.' however, pur- that such religious poses really significance, are without has never been demonstrated that secular means would not suffice. Indeed, suggest I that patriotic would or other nonreli- might gious provide adequate, materials substitutes— inadequate only purposes to the extent now directly indirectly served are religious. indeed or Under circumstances, such employ religious the States not means to a secular goal reach unless secular means are wholly unavailing. agree I therefore with the. Court that judgment No. Schempp, affirmed, must be that in Murray, No. must be reversed.

V. These considerations bring me to a final contention school officials these cases: that the invalidation of the exercises at bar permits this Court no alternative but every vestige, to declare unconstitutional however slight, of cooperation religion or accommodation between government. I cannot accept contention. not, While it is of course, appropriate for this Court questions decide presently not it, sug- I before venture to gest that religious public exercises present schools a unique problem. For not every involvement of in public life violates the Establishment Clause. Our decision in these cases does clearly anything forecast about constitutionality types of other of interdepend- ence religious between and other institutions. I

Specifically, believe that the line we must draw be- tween permissible impermissible and the is one which accords with history and faithfully reflects the under- standing Founding Fathers. It is a line which the consistently Court has sought mark in its decisions expounding guarantees of the First Amend- ment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause for- have religious with secular those involvements bidden, are essentially (a) serve institutions organs (b) employ the institutions; activities (c) purposes; essentially religious government ends, governmental means to serve religious essentially use the secular would suffice. When means where secular in a man- such become involved institutions and dan- precisely those relationship inhere the there ner, the Framers church as to state —which much to gers—as strength the of religious liberty and would subvert feared hand, other On the government. system secular govern- forms of involvements may myriad be there dangers and such import which do not with ment to vio- be deemed not, my therefore should judgment, Nothing in the Constitu- Clause. late the Establishment to what to be blind organs government the compels tion among religious differences everyone perceives else —that implications pervasive and important have Americans Establishment nothing the society. Likewise for our legislation purely having forbids the Clause application upon burdens way in such alleviate secular ends Surely religious beliefs. of an individual’s free exercise that such a would understood the Framers never have violates sanctions involvement which construction be, a conclusion can Clause. Such the Establishment only using the words reached, by I would suggest, ‘ very its purpose. Amendment to defeat First forms impermissible permissible The line and between religion has government of involvement between by lower federal and state already been considered of these forms survey I think a brief of certain courts. will that the First Amendment of accommodation reveal only hostility religion, not official toward but commands neutrality religion. Moreover, a strict matters scope holding today of our may suggest serve to by special is to be under measured circumstances by arisen, particular which these cases have dan- gers church which in the and state exercises public schools It present. may helpful purposes for analysis these other and forms of group practices categories., several rough accommodation into Between Establishment Exer- and Free A. Conflict cise.—There practices, conceivably are certain violative Clause, striking Establishment down of might seriously interfere with liberties certain protected also First Amendment.70 for Provisions military churches and chaplains establishments those example.71 armed one such services afford 70See, general on problem be conflict accommodation tween the two clauses, Katz, Religion Freedom of Neutral State ity, (1953); Griswold, 20 U. Chi. L. Rev. Absolute Is In Dark, 167, (1963); 8 Kauper, Church, Utah L. Rev. 176-179 State, Review, (1954). and Freedom: A 52 829, Mich. L. Rev. 833 suggested One author has that the Establishment and Exercise Free stating single precept: government Clauses must be “read as religion cannot utilize as a standard for action or inaction because clauses, together they prohibit these read be, as should classification of in terms to impose either confer' a or benefit to a burden.” Kurland, Religion Compare and the Law 112. the formula of Constitution, accommodation embodied the Australian 116: § “The any establishing Commonwealth shall not make law for any religion, imposing any religious pro- for observance, or for hibiting any the free of religion, exercise and no shall test required qualification as a for office or trust under Essays (Else-. the Commonwealth.” on the Australian Constitution 1961), Mitchell ed. 15. 71 has opinion throughout There been much difference of Ameri history can concerning advisability furnishing chaplains government expense. Compare, g., Washington’s regard e. order ing chaplains July Writings for Army, 9, 1776, the Continental in 5 George Washington (Fitzpatrick 1932), 244, ed. with Madi very on son’s views question, Livingston, similar to letter Edward July 10, 1822, Writings (Hunt 1910), 9 of James 100- Madison ed.

297 by governments and federal for state provision The like may afford another exam- chaplains penal institutions provisions may that such be assumed argued ple.72 It is Clause, yet be sustained to Establishment contravene grounds necessary as to secure to the on constitutional and prisoners rights Forces those of the Armed members the Free Exercise Clause. worship guaranteed under persons has such of the deprived oppor- government Since Chaplains this the Armed Forces Compare also statement obligation: concerning chaplain’s Board guidance spiritual “To been entrusted the and moral us has young country. Armed this A women in the Services of men and many chaplain yet, pre- first and is that has foremost duties — wearing military senting uniform. to men and women What God they military profound happens while are in service has a to them community happens they effect resume civilian on what as cognizance chaplains, of that We, life. must take full fact strengthened making finer, spiritually them dedicate our work (U. Department 1955), Defense of Faith S. ii. citizens.” Builders compare regard express provision, interesting an Article It is in this “Necessary 140, free time shall be ac- Constitution: the Weimar forces the fulfilment of their corded the members the armed Rogers, The New duties.” McBain and Constitutions Europe (1922), 203. problems in For of some recent and difficult connec a discussion g., prisons, see, e. chaplains and exercises Pierce tion with 233; Ferguson, In 2d Vallee, F. 2d re 55 Cal. v. La McCorkle, Super. 468, 417; v. 44 N. J. 130 A. P. 2d McBride ,E. McGinnis, 791; 2d 881; 2d 10 N. Y. 180 N. 2d Brown (1962); Comment, L. Rev. 1488 75 Harv. Rev. discussed Col. L. Compare Hague (1962). XVIII Convention Article Regulations of 1899: every enjoy the exercise war shall latitude in of their

“Prisoners of provided including services, own religion, attendance -at their church only comply regulations police by they with the for order and issued Quoted military Blakely, Papers authorities.” American State Religion (4th 1949), Documents on Freedom ed. and Related rev. 313.

298

tunity-to practice places choice, their faith at of their runs, in argument government may, order to avoid fringing guarantees, free provide exercise substitutes a requires persons principle where it such to be. Such might for support, example, constitutionality of draft exemptions divinity for ministers and students,73 cf. Selec Cases, tive Law 245 366, 389-390; S. U. Draft excusal of children school on their respective reli gious holidays; government and of the allowance temporary of public buildings by religious use organiza tions when their own churches have become unavailable because a or emergency.74 of disaster

Such practices activities and seem distinguishable from the sponsorship daily reading prayer Bible recital. thing, For one pres there is no element of coercion appointment ent of military prison chaplains; the soldier or convict who declines the opportunities for worship would ordinarily subject himself the sus picion or obloquy peers. special of his significance to Of this distinction is the fact that we are usually here deal

73Compare generally Sibley Jacob, Conscription of Con science: The American State and Objector, the Conscientious 1940- Conklin, Objector 1947 with Conscientious Provisions: A View Watkins, Torcaso v. Light in the (1963). 51 Geo. L. 252 J. 74 g., Baptist e. See, Southside Estates Trustees, Church v. Board of Mandeville, Lewis (Fla.); So. 2d 697 120,107 v. 201 Misc. N. Y. S. 865; Schmidt, 2d cf. School District No. 97 495, v. 128 Colo. 263 P. 2d (temporary church). loan of school district’s custodian Á problem may presented different respect regular with to the use public property school activities, State ex rel. Gilbert Dilley, v. 527, 145 999; Neb. N. property W. erection on essentially religious a statue of or memorial an figure, State Singelmann ex rel. v. Morrison, (La. App.); 2d 238 seasonal 57 So. displays Kolmorgen, religious character, Baer v: 14 Misc. 2d 230; performance N. 2d public property Y. S. or the on of a opera drama or based carrying on material or 'County Angeles Hollinger, Los message, cf. App. 200 Cal. 2d Cal. Rptr. as in impressionable not with children ing adults, with exercises are Moreover, schools. the school public pupils general oppor with designed provide not legal obligation worship by tunities for denied them in compelled presence to attend school. The student’s regular in days way school for a week no renders the five him community of less accessible to facilities of they than are to others. The situation the school child plainly' is therefore unlike that the isolated soldier prisoner. or the steadfastly

The State must be neutral in all matters and In faith, religion. neither favor nor inhibit my view, government sponsor religious cannot exercises jeopardizing neutrality. schools without hand, hostility, neutrality, On the other would charac- terize provide chaplains the refusal to places wor- ship prisoners for and soldiers cut off the State from all opportunities civilian for public communion, the with- exemptions of draft holding ministers conscien- objectors; tious or the denial an temporary use of empty public building congregation place whose a. worship destroyed by has been fire I or flood. do not say government provide must chaplains or draft or that exemptions, if courts.should intercede it fails to do so.

B. Establishment Legislative Exercises Bod- saying ies.-—-The of invocational prayers legislative chambers, state or federal, appointment and the legis- chaplains, might lative represent well no involvements the kind prohibited by the Legis- Establishment Clause.75 lators, federal and state, are mature adults who may pre- sumably absent themselves from public and cere- such 75Compare Myers, Report Moulton Appointing Chaplains on Legislature to the Blau, of New York, Religious Cornerstones of Freedom in (1949), 141-156; America Comment, 63 Col. L. Rev. (1963). incurring penalty, without direct monial exercises significant It also be at least that, indirect. I, Art. makes Congress, 5,§ case the Constitution Proceedings” each monitor of the “Rules of its- House the pre arguable that it is at whether such matters so least “political questions” sent the resolution of which is exclu sively Congress. Carr, confided to See Baker v. 369 U. S. Finally, question 232. there is the of who difficult challenge be such practices. heard to See Elliott v. White, 23 F. 2d 997. Public

C. Non-Devotional Use Bible holding today plainly Schools.—The does Court teaching foreclose Holy not about or Scriptures about the differences between sects in in litera classes ture or history. Indeed, whether or Bible it involved, impossible would be teach meaningfully to many subjects in the social sciences the humanities religion.76 without some mention of extent, To what points curriculum, religious and at what in the materials should be cited are matters which the ought courts very largely experienced entrust to the officials who superintend our Nation’s They schools. ex are perts in matters, such and we are not. We heed should Mr. Justice Jackson’s caveat attempt this Court to announce curricular “to would be standards uniform, rigid decree a if and, are un consistent, we an represent- changing standard for countless school boards comprehensive survey problems A of the concerning raised religion role of in the secular curriculum is Brown, ed., contained in Study Religion Appraisal in the Public (1958). Schools: An Religion Katz, See also Constitutions, American Lecture at University Northwestern Law School, pp. 37-41;. 21, 1963, March Educational Comm’n Policies of the Assn., National Education Moral . Spiritual Values the Public Schools 49-80 Compare, problems a consideration of state-supported colleges similar universities, Jackson, Religion, Louisell and Theology, and Public Higher Education, (1962). 50 Cal. L. Rev. 751 ing serving highly groups only localized which not from each differ other but which themselves time change attitudes.” Illinois ex rel. McCollum time Board, Education, supra, my

We do not, however, usurp jurisdiction view by holding today of school administrators as we do morning in any devotional exercises form are constitu- tionally go invalid. But there is no occasion now to fur- anticipate problems judge ther and we cannot with the Any attempt impose rigid material now us. before upon limits the mention óf God or references to the Bible fraught dangers. classroom If it would be with should sometime be shown that in hereafter fact play part teaching given no in the of a subject can with- resurrecting, ghost out practices strike down we will today, enough questions to consider then time we must now defer. Incidentally

D. Exemptions Tax to Available Uniform Religious Nothing today questions we hold Institutions. — the propriety of certain tax deductions or exemptions which incidentally religious benefit churches and institu- tions, along many with nonprofit secular charities and organizations.. If-religious benefit, institutions it is in spite of religious rather than' because their character. For religious simply-share gov- institutions benefits which ernment generally makes educational, available to chari- table, and eleemosynary groups.77 There is no indication taxing that authorities have used such benefits in way to subsidize or worship foster belief God. And as generally See Torpey, Religious Rights Judicial Doctrines of VI; Exemption America Alstyne, c. Van Tax of Church Property, (1959); Sutherland, 20 Ohio State L. J. 461 Due Process Disestablishment, (1949); 62 Harv. L. Rev. 1336-1338 Religion, Jackson, Theology, Higher Louisell and and Public Educa tion, (1962); 50 Cal. L. Rev. 773-780 7 De Paul L. Rev. (1958); (1958); (1957). 58 Col. L. Rev. 9 Stan. L. Rev. 366 among religious beneficiaries, the tax exemption deduc- truly tion can be nondiscriminatory, available on equal terms to small large religious as well as bodies, popular to unpopular sects, and organizations those which reject as well as those accept which belief God.78 Considerations n Public Religious

E. Pro- Welfare grams. government may support or directly —Since aid violating activities without the Establish- might ment there be Clause, some whether nondis- doubt criminatory programs governmental may aid constitu- tionally include individuals who become eligible wholly or partially reasons. example, might For it suggested provides where a State unemploy- compensation ment generally to those who unable to are find suitable may work, not extend such benefits to persons who unemployed by are reason of beliefs or practices thereby without establishing persons those belong. argument Therefore, runs, the State only by avoid an establishment sin- gling out and excluding ground such persons'On religious beliefs or practices made them potential have beneficiaries. Such a me, construction it seems to would, government require impose religious discriminations and disabilities, thereby jeopardizing the exercise of free religion, in order to avoid thought what is to constitute an establishment. inescapable flaw in I argument, suggest, is its

quite unrealistic view of aims of the Establishment Clause. The Framers were not concerned with effects, the of certain incidental aids to individual worshippers which come by-products about as of general and nondiscrimina- tory programs., If welfare such serve benefits to make g., See, Washington Society e. Ethical v. Columbia, District of App. 127; 101 U. S. D. Fellowship Humanity C. 249 F. 2d of County Alameda, App. 153 Cal. 2d 315 P. 2d 394. expensive creed,

easier or of a practice particular less the or of all the hardly purpose it' can said religions, be that program is in the con- way religious, or that sequence nondiscriminatory application its is create degree interdependence forbidden secular between accept institutions. I sectarian cannot therefore implicit argunieftt which me suggestion, seems to in the every outlined or con- here, judicial that administrative prevent struction is designed public welfare program abridging free be- exercise ipso is that reason an establishment liefs, facto religion. Which, Though Religious Origin,

F. Activities Have Religious Meaning. Ceased to Have noted our we—As Sunday on nearly every criminal law decisions, Law books can or principle inspira be traced some tion. present But that does not make enforcement in any the criminal law an of religion, sense establishment simply widely religious prin because it accords with held ciples. Maryland, As said in we McGowan v. S.U. 420, 442, ban “the ‘Establishment’ Clause does not federal or regulation merely of conduct whose or reason effect state happens to harmonize with some the tenets coincide or all religions.” suggests This rationale that' the use the motto “In We on Trust” on documents currency, God buildings and may like offend the not clause. It that use of those four words can be suspect dismissed as “de minimis” —for I would there opposition'to intense of that motto. abandonment simply truth is we have motto interwoven deeply polity present so into the fabric of our civil that its use may present type well not of involvement which the First Amendment prohibits.- general principle might

This also serve to insulate the patriotic exercises various and activities pub used in the which, lic schools and elsewhere whatever have been origins, longer their' no a purpose or .mean have ing. divinity The' reference to' in the pledge revised allegiance, may merely for example, recognize the his torical fact that Nation was believed to have our been founded reciting “under God.” Thus the pledge may be no more of a reading than exercise aloud of Gettysburg Address, Lincoln’s which contains an allusion to the same historical fact. principles apply today we reaffirm and can

hardly thought be novel or They are, radical. truth, as old as Republic itself, have.always been as integral part of the First Amendment very as the words that charter of liberty. applicable No less today they than were when pronounced century ago, first year very after the first involving court decision reli- one. gious exercises in the public are the words of schools, a. distinguished Chief Justice of the Commonwealth Pennsylvania, Jeremiah S. Black: object

“The manifest of the men who framed the institutions of this country, was to have a with- State religion, out and a politics Church without is —that to say, they meant that one should be never used an engine for any purpose of other, and that no rights man’s in one should be tested opinions his As about other. the Church takes no note of political' men’s differences, so the State looks with equal eye on all the modes of religious faith. . . . Our fathers seem to have been perfectly sincere in their belief that the members of the Church would patriotic, moré and the citizens of the State more religious, by keeping respective their functions en- tirely separate.” Essay on Liberty, Religious Black, Essays and ed., Speeches of Jeremiah Black S. (1886), 53. with whom

Mr. Mr. Goldberg, Justice Justice .concurring. joins, Harlan

As apparent is filed opinions today, the delineation of . constitutionally permissible relationship the between religion government and most' difficult and sensitive- task, calling for the careful exercise of both judicial and judgment and restraint. considerations which léad the today clearly Court to interdict reli- gious practices presented wholly in these cases are to me compelling; I have no of propriety doubt as to the the decision and join opinion judgment therefore and of the Court. The singular sensitivity and concern which legal surround practical judgments both and in- the. impel me, volved to however, add a few words further explication, while at the time avoiding repetition same framed, of carefully ably history examination of and authority by my Brethren.

The First guarantees, Amendment’s applied ás to the through States Amendment, Fourteenth not foreclose only laws' an “respecting religion” of establishment but also those “prohibiting the free exercise thereof.” These, proscriptions two are to read and in together, light of single they designed end which are to serve. purpose The basic religion First clause promote Amendment to and assure the possible fullest is. scope liberty and tolerance for all and to (cid:127) nurture the hope which secure the best conditions attainment of end. that

The fullest realization of religious liberty requires true government neither engage in nor compel religious practices,' among effect no favoritism sects. or religion nonreligion, between and that it work deter- rence no belief. devotion even to But these simply objectives presents stated easy no for the course, unavoidable accommodations necessary to achieve and all of are often of each them enjoyment

maximum simple me no is for difficult of discernment. There . can application by precise and clear measure from the invariably permissible demark the readily and impermissible. agree, government and I that the attitude said,

It is But untutored neutrality. must be one toward neutrality can lead to invoca- concept to the devotion not partake simply tion or of results which approval the reli- that noninterférence noninvolvement with of a brood- gious commands, which the Constitution but ing passive, and a pervasive devotion the secular hostility religious. are active, even Such results only compelled by Constitution, but, not it seems me, prohibited by are it. government ignore Neither nor this cán or should Court significance the of fact that a of portion peo- the vast our ple in and of worship many believe God and that our political historically and legal, personal values derive religious teachings. inevitably from must Government cognizance of religion indeed, take the existence of and, certain under the First Amendment circumstances require that it do And so. it seems clear to me the opinions present past in the and cases that Court the recognize would propriety providing military chap- the of lains of teaching distinguished and the religion, about teaching from the in religion, public schools. The of examples readily multiplied, could be for both the re- quired permissible and the accommodations between state hostility and church frame relation as or one free productive favor and and political harmony, involvement of but without undue the concerns one other. To practices or be judgment sure, case, one, each is a delicate but it if must made arewe loyal judges service as to do the ultimate First Amend- religious liberty. objective ment practices The here involved do fall within any sensi- ble or acceptable concept compelled permitted ac- commodation and involve the state so significantly and directly in the realm of give the sectarian as to rise to inhibitions, very those divisive and influences of freedom which both clauses of the First pre- Amendment clude. The state ordained and has utilized its facilities has. engage in unmistakably religious exercises—the devo- tional reading and recitation of Holy Bible—in a man- having ner significant substantial and import and impact. That it has selected, rather than particular written, liturgy seems to me without constitutional devotional import. pervasive religiosity govern- direct mental inhering involvement prescription of prayer reading Bible schools, during and as part of the curricular involving young impressionable day, children whose statutorily school attendance compelled,. utilizing the prestige, power, and influence of school staff, and administration, authority, realistically cannot simply be termed and must fall within accommodation, the interdiction of First I nothing Amendment. find says the Court which more than this. opiniop And, of course, today’s decision does not mean all government import incidents are therefore without more banned the strictures only the Establishment Clause. As the Court declared Engel Vitale, last Term in S. U. n. 21: nothing “There is course the decision reached here that is with the fact that school inconsistent officially encouraged children and others are to ex- country by reciting for our press love historical docu- Independence ments such as Declaration of which Deity or by singing contain references to the offi- cially espoused which anthems include com- poser’s professions Supreme faith in or Being, .of many with the fact that there manifestations are patriotic life of belief in God. Such or our ceremonial bear no to the occasions true resemblance unquestioned religious exercise . . . that State has in this instance.” sponsored The First Amendment prohibit practices does not by any dangers- realistic measure create none of the which it designed prevent is and which do not so directly substantially or in religious involve the state exer- cises or in favoring of religion meaningful as to have and practical impact. It is of course great true that con- sequences can grow from small beginnings, the meas- but ure of constitutional adjudication is ability willingness to distinguish between real threat and mere shadow. dissenting. Stewart, Justice

Mr. I think the records in the two cases before us are so fundamentally deficient as to impossible make an in- formed or responsible determination of the constitutional issues presented. I Specifically, agree cannot that on these records we can say that the Establishment Clause has necessarily been violated.1 I think But there' exist questions serious under both provision and the Free Exercise Clause—insofar as each is imbedded in the Four- teenth Amendment —which require the remand of these cases for taking of additional evidence.

I. The First Amendment declares “Congress shall make no law respecting an establishment religion, prohibiting the free exercise thereof . . . .” It is, I 1 It instructive, in this.connection, complaints examine the the two cases before us. complaint Neither challenged attacks practices as allege “establishments.” What both as the basis their causes of are, rather, actions violations liberty. think, oversimplification a fallacious regard these two provisions as a establishing single constitutional standard of “separation of church and which state,” can be mechan- ically every applied case to delineate required government between religion. boundaries We err if place the first we do not recognize, history as a matter of imperatives as matter society, our free government must necessarily interact ways. countless Secondly, the fact is that while in many contexts the Establishment Clause Free Exercise fully complement Clause each other, there are areas in which a doctrinaire.reading of'the Establishment Clause- with, leads to irreconcilable conflict the Free Exercise Clause.

A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for might the armed forces be said to violate Establish- ment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain government that a which provide did not him the opportunity' pastoral guidance was affirmatively prohibiting the free exercise religion. his. And such examples' readily could multiplied. The short of' the is simply matter two relevant clauses of the First Amendment cannot accurately be reflected in a metaphor sterile its very rather, nature distort than illumine prob- lems particular involved case. Cf. Sherbert v. Verner, post, p. 398.

II. As a matter of history, the First Amendment was adopted solely as a limitation upon newly created National Government. The leading events to its adop- tion strongly suggest that the Establishment Clause was an primarily attempt insure that Congress only would be powerless to establish a national church, but existing state estab- to interfere with also be unable

would S. Maryland, McGowan 366 U. lishments. See go way its own Each was left free to 440-441. State réspect religion. with Thus pursue policy its own a of disestab- Virginia beginning pursued policy from the an by contrast, had Massachusetts, lishmentarianism. century. established church until well into nineteenth adoption So stood until of the Fourteenth matters deci- Amendment, accurately, or more until this Court’s Connecticut, in 296. sion Cantwell v. in 1940. 310 U. S. In that case the said: Court First Amendment “The. Congress declares respecting that shall make no law an prohibiting, establishment of exercise the free thereof. The Fourteenth Amendment has rendered the legislatures of the states -as incompetent Congress as 2 enact such laws.”

1 accept question without liberty guaranteed that by the Fourteenth Amendment against impairment by the States embraces full the right free exercise of religion protected by the First I Amendment, yield no in my one conception of the breadth of that freedom. Brown, See v. 366 S. 599, (dissenting U. 616 Braunfeld opinion). I accept proposition too the Four- that teenth Amendment has somehow absorbed the Establish- ment Clause, although it is irony a without con- stitutional provision evidently designed to leave the States free to go way their own should now have become re- upon striction autonomy. their But I agree cannot with what seems to mq the definition of the Estab- insensitive lishment Clause contained opinion, Court’s nor with the different I but, think, equally mechanistic defi- nitions separate contained opinions which have been filed.

2 S., 310 U. at 303. The Court’s statement as to the Establishment Clause in Cantwell was dictum. The case was decided on free exercise grounds.

III. this pronouncement Since the Court Cantwell only ground has twice invalid state on the held laws were they “respecting religion” an establishment laws McCollum violation Fourteenth Amendment. Education, Vitale, 203; Engel v. Board S. U. hand, the other has upheld U. S. On the Court against challenge establishing such a Sunday laws compulsory day of rest, Maryland, McGowan v. S.U. and a authorizing law reimbursement transportation parochial school pupils. funds Education, Everson v. 1.S.U. Board of other guarantees, First Amendment Unlike there is an upon inherent limitation the applicability the Estab- lishment ban on support religion. Clause’s state That succinctly put limitation was in Everson Board Edu- v. cation, 1, power 330 18: no U. S. “State is more to be 3 them,” handicap

used as to religions so than it is to favor in a case, recognized And later this Court limita- tion was which was compelled one itself by free exer- guarantee. “To cise hold that a consistently cannot state with First Fourteenth its Amendments utilize system any school religious to aid or all or faiths in the sects dissemination of their doctrines and ideals . . governmental does . manifest a hostility to reli- gion religious teachings. A of such manifestation hos- tility would at war with our national tradition as embodied the First Amendment’s guaranty of the free. Clauson, also, Zorach v. connection, See this 343 U. S. 314: may religious groups “Government not finance nor undertake nor instruction blend secular and nor use sectarian education secular religion person. institutions one any force or some on we But requirement necessary find no constitutional which makes it for government religion weight against be hostile to and to throw its scope to widen effective efforts influence.” . religion.” Education, exercise of McCollum v. Board S. U. 211-212. That the central value embodied the First Amend- in. and, more guarantee of “lib- particularly, ment — erty” contained in the safeguarding Fourteenth —is the right of an individual’s to free exercise of his been consistently recognized. has Thus, the case of Hamilton Regents, v. Mr. 245, 265, U. S. Justice Cardozo, concurring, assumed that it was . . the reli- gious liberty protected by the against First Amendment by invasion protected by nation the Four- [which] teenth against Amendment by (Em- invasion the states.” phasis added.) Connecticut, inAnd Cantwell supra, of those purpose guarantees described in the was following terms: “On the one hand, it forestalls com- pulsion by law of acceptance any creed or the practice form worship. Freedom of conscience and freedom to adhere to such organization or of worship form the individual choose cannot be hand, safeguards restricted law. On the other religion.” free exercise of the chosen form of S.,U. at 303. concept

It is this of constitutional embodied protection in our decisions which makes the cases before us such dif- ficult ones me. For there is involved these eases a substantial free claim on part exercise of those who affirmatively desire to their day have children’s school open with the of reading passages from the Bible.

It has become accepted that the decision Pierce v. Society Sisters, 268 U. S. 510, upholding right the of parents to send their nonpublic children to schools, was ultimately upon recognition based of the validity the free exercise claim involved that situation. It might argued be parents here that who wanted their chil- exposed dren to religious be to influences in could, school Pierce, under send their children private to parochial renders consideration which this conten- schools. But the recog- already has tion facile to be determinative been too “Freedom of freedom of the by speech, nized the Court': merely religion all, freedom of available to press, are Murdock pay way.” who can their own those Pennsylvania, S. U. might argued parents that who their

It also want exposed religious children influences can adequately property fulfill wish off school outside school With all surface this persuasiveness, however, time. its constitutional, the-basic argument seriously misconceives for at'issue in these justification permitting exercises system a state so compulsory cases. For educational that if structures child’s life exercises are held impermissible activity an in schools, placed to be is disadvantage. at an artificial and state-created Viewed of such who permission this exercises those light, if necessary truly them is the schools to be neu are wanu religion. permit tral in the matter of And refusal to seen, is not as the realization thus exercises a reli but rather as establishment of neutrality, state government gion secularism, support or at the as least, think exercises" beliefs of who those only private. be conducted should paramount then, be of importance, What seems to me to claim here recognition of the fact that advanced is reading sufficiently Bible is substantial to make in favor of phrase constitutional “establish- simple reference analysis an cases religion” inadequate ment of invocation of- the nonconsti- before as the ritualistic us of church and What phrase “separation state.” tutional analysis compel, rather., just is an what the cases these required interplay “neutrality” is First and Free Exercise Clauses Establishment in the as imbedded Fourteenth. Amendment, 314

IV. no make clear that there is constitutional decisions Our. religious pur- government property bar to the use of consistently held poses. contrary, On the this Court has barring religious groups from discriminatory public property itself a of First and Fourteenth is violation Island, guarantees. Fowler v. Rhode Amendment Maryland, S. A dif- 67; S. Niemotko v. 340 U. 268. U. applied, public prop- has school ferent standard been by effect which use erty, because of the coercive neces- religious compulsory system of a school would sects children McCollum v. sarily upon have involved. Education, 333 S. 203. But insofar as the Board U. on the Establishment rather than McCollum decision rests is lim- Clause, the Free Exercise it is clear that its effect government support ited to instruction —to by throwing the proselytizing sects activities weight authority behind the secular dissemination religious tenets.4 dangers government

The both to and to inher- ent in official of instruction the tenets of support various present cases, sects are absent only reading unaccom- involve the Bible panied by might comments which otherwise constitute appears instruction. from all that since, either Indeed, any teacher who not wish to do so is record, does free participate,5 not to even be contended that some cannot beyond question “This is all a utilization of the tax-established tax-supported system religious groups school aid spread Education, their McCollum v. Board 333 U. S. faith.” added.) (Emphasis Pennsylvania specifically statute was amended to move compulsion upon 17, 1959, of December teachers. Act P. L. Maryland Purdon’s Pa. Stat. Ann. 15-1516. Since the case § part infinitesimal paid State are salaries contingent upon performance made the of a function. legislature

In the absence of that or school evidence the intended, prohibit substituting board to local schools from readings a parents requested different set of where such a provisions we should not that before change, assume the may sim actually us—as not be construed administered — ply authorizing religious desig as nor the that exercises, of simply nations treated indications the be as promulgating body’s community’s prefer as view to the duty interpret are a these ence. under We provisions] reasonably possible. so if as to render them constitutional 592-595; Guys McGinley, Two v. Compare U. S. Education, 330 n. 2. S. 1, 4, Everson Board U. In case is evidence which indicates Schempp there permitted by very school that variations were fact intro that variations were not there further involved, par only requests absence duced because itself Murray And in case the Baltimore rule ents. provision permitting another version contains King James version. for the Bible to substituted I construed, so think provisions If the are not Clause would be yalidity their the Establishment under par- designation of a extremely because of the doubtful, But prayer. ticular book and denominational I believe provisions if are construed since, even as us must be re- I the cases before they be, must think that on other issues—thus manded for evidence afford- further _to prove an local ing plaintiffs opportunity bal- permitted are not fact shall for the variations —I could be demurrer, here the issue of whether or not a teacher on a seems, among, many others, participate never dismissed for refusal been raised. have dissenting opinion anee of this provisions treat the before making variety us as exercises, content of the well'ás a implementation, choice as to their matters which , ultimately reflect the consensus of each local school com-

munity. In the upon absence coercion those who do not wish to participate they strong hold less —because other beliefs, beliefs, provisions. no beliefs at all—such cannot, my view, represent be held to type support religion barred the Establishment Clause. only support For provide which such rules is the withholding of state hostility simple acknowl- —a edgment part on secular authorities that the Con- require extirpation stitution -does not expression all religious belief.

V. I provisions authorizing religious have said these that properly exercises are to regarded making as measures possible religion. the free exercise of important But it is strictly to speaking, stress what that, is at issue here is a privilege than a In right. ques- rather other words, the presented tion is not whether exercises such as those at constitutionally compelled, here are but issue rather they constitutionally whether are issue, invalid. And that in my view, question turns on the of coercion. dangers

It is clear that the of coercion in involved holding quali- exercises in schoolroom differ tatively from presented by those use similar exer- or in cises affirmations ceremonies attended adults. Even as children, however, duty laid upon govern- ment connection with exercises in public refraining schools is that of from so structuring the school put any environment as to kind of pressure on a child to participate in those exercises; is not that of providing an atmosphere which children are kept scrupulously insulated from awareness that some of their fellows open day with or of the want to prayer, school fact that exist in differences pluralistic society there our of religious belief. Brown v. not, stressed,

These are it must be cases like Education, 347 Board in which this Court S.U. held Four sphere education, in the that, guarantee equal protection teenth of the Amendment’s required laws that race factor. not be treated as relevant A segregated system oper school is not invalid because its ation coercive; simply it is our invalid because Consti tution presupposes equal, men are created that therefore provide racial cannot a valid basis differences governmental action. Accommodation of part differences on the State, only is not however, permitted required by but same Constitution. governmental which neutrality and Four- First teenth Amendments require us, the cases before .other words, is extension of evenhanded treatment all who believe, doubt, part disbelieve —a on refusal weight the State private the scales of choice. In these cases, therefore, what is involved is action not state based on impermissible categories, attempt but rather an by the State to accommodate those differences society existence our of a variety of religious beliefs makes inevitable. The Constitution requires that such efforts be only they struck down if proven are to entail the use authority government secular to coerce a preference among such beliefs.

It well as be, argued has been us, to even supposed benefits to be derived noncoercive exercises in public schools are incommensurate with the problems they administrative which would create. The involved, choice however, is for one each local community and board, its school and not for this I For, Court. said, have religious exercises are not constitutionally in- valid if simply they reflect differences exist which They

society from which school draws its pupils. become, constitutionally only if administra- invalid their places tion of secular behind one authority the sanction or particular religious irreligious more beliefs. types

To be it specific, seems to clear that certain me present possibility exercises would no situations part coercion on the secular officials could be claimed if Thus, to exist. such exercises were held either before or after the official or if the school day, school merely schedule participation were such that one were among a number alternatives,6 hardly desirable could be contended that the exercises than anything did more to provide an opportunity voluntary expression of religious belief. On the other a hand, pro- law which during vided for day exercises the school and provision which contained no obviously excusal would be unconstitutionally upon coercive those who did wish to participate. containing And even under law an provision, during excüsal if the were held exercises day, school no equally desirable pro- alternative were vided school authorities, the likelihood that chil- dren might psychological compul- be under least some to participate great. sion would In a case such as the think, latter, I however, w'e err if would we assumed such in the of any absence evidence.7 coercion 6 See, e.g., description plan permitting religious of a instruction property off school Education, contained in McCollum v. Board of (separate opinion 333 U. S. Frankfurter). of Mr. Justice separating 7 Cf. “The task of the secular from the magnitude, intricacy lay is one of delicacy. education To down sweeping by complainant constitutional doctrine as demanded apparently approved by Court, applicable alike to all school nation, is rigid boards uniform, and, ... decree a if we are consistent, unchanging an standard for rep countless school boards resenting serving highly groups only localized which not differ from each other but which change themselves from time to time attitudes. It seems me that do so to allow zeal for our own

VI. clear that me light, it seems to in Viewed this wholly inade- us are cases before in both of the records responsible decision. an informed support quate to permit explicitly provisions cases involve Both participa- from wishes, to be excused who any student no in either is evidence exercises. There tion coercion of any exist there would as to whether case partici- want a who did not upon kind student any Murray in the all was adduced No pate. evidence All that a demurrer!. upon case, because it was decided language conclusory is the case, therefore, in that we have conclusory allegations are While such pleading. of .a I think acceptable procedural purposes, clearly problem involved here of the constitutional nature except upon evidence. no decision be made demands that a no more than shows Schempp In the case record thought what parent a he prophecy subjective made, from if were be excused happen request would statute. under amended participation exercises no and there is evidence made, was ever request No such actually happen, might or would as to what whatever arrangements the school nor of what administrative pressure might or could make to free actually exercises. participate kind who do not want to those on since findings issue, no this There District Court were was decided amended statute exclu- the case under the grounds. Supp. on Clause F. sively Establishment indispensably protects is the our Constitution What Agnostic, Jew or Christian or us, of each of be he freedom accept good instruction to induce ideas of what us every super education for school district board of role of (con v. Board nation.” McCollum Education. U. S. Jackson). curring opinion of Justice Mr. Atheist, Buddhist or Freethinker, disbelieve, to believe or to worship pray or not worship, keep silent, or accord- ing to his own conscience, by uncoerced and unrestrained government. It is conceivable that these boards, school all boards, even school might eventually find it impos- sible system to administer a of religious during exercises school way hours such as to meet this constitutional way standard —in such a completely to free kind of official coercion those affirmatively who do not want to participate.8 But I think we must not assume that school lack qualities boards so of inventiveness and good will as to make impossible the achievement of that goal.

I would hearings. remand both cases for further example, Schempp For the record in the proof case contained .if (rather prophecy) than timing morning mere announce ments handicap school was such as to children who did want listen reading, provision Bible or that the excusal was carry any so administered toas overtones of inferiority, social then impermissible clearly coercion would exist.

Case Details

Case Name: Abington School Dist. v. Schempp

Court Name: Supreme Court of the United States

Date Published: Jun 17, 1963

Citation: 374 U.S. 203

Docket Number: 142

Court Abbreviation: SCOTUS