Joseph C. Daniel, Jr. v. Hugh Waters, Chairman, Textbook Commission of the State of Tennessee

EDWARDS, Before CELEBREZZE LIVELY, Judges. Circuit

EDWARDS, Judge. Circuit

We are confronted in this by a legislative version of the effort suppress of evolution which produced Scopes “monkey the famous provisions of this Act shall apply State, Scopes trial” of any to use legally textbook now use, Tenn. beginning S.W. until ini year 76; Legislature instance provided, school of 1975— sought however, suppression to avoid direct require- the textbook speech and has eschewed direct criminal way ments stated above shall in no purpose sanctions. But the establish- of the the duty diminish of State Text- ing the creation Biblical version of the of prepare book of Commission a list theory over the of the approved man Darwinian standard editions of text- of in the evolution man is as clear public books for use in the of schools as it statute was in the of 1925. provided statute state as the in this section. Each local school board use biology Plaintiffs are teachers of or supplementary textbooks material public schools, of Tennessee some whom approved by as the of State Board parents public are also school stu- carry Education to provi- out the dents, plus the National Association of teaching sions of this section. The Biology Teachers. defendants of all occult or satanical beliefs of members the Tennessee state board origin expressly human is excluded charged responsibility is which with the from this Act. selecting public school textbooks. Ju- Provided, however, risdiction is invoked 28 U.S.C. under SECTION Holy 1343(3) (1970). Bible be shall not textbook, hereby defined as a but issue, 377 of Chapter to be declared a reference and work Tennessee, Public Acts required carry shall not dis- reproduced below. We have underlined provided claimer above for textbooks. specific language plaintiffs-ap- which violative of pellants patently assert to be provisions SECTION 3. The this First and hereby Fourteenth Amendments Act are declared to be severa- ble; the Constitution of the States: if any sections, United and provi- of its sions, clauses, parts or be held uncon- SECTION 1. Code Anno- Tennessee void, stitutional or then the remainder tated, Section is amended 49— of this shall Act continue in full force adding following paragraph: effect, it being legislative in- Any biology used for textbook hereby tent now declared that Act this teaching public schools, which in the adopted would have beеn even if such expresses opinion an or relates a of. unconstitutional or void matter had theory origins about creation of not been included herein. prohibit- man and his world shall be being ed from textbook in used as a 4. This Act shall take SECTION system specifically such unless it law, upon becoming public effect theory states that it is a as to the requiring welfare it. origin and creation of man and his Tenn.Pub.Acts, (Em- Chap. 377 represented world and is not to be added.) phasis Any scientific fact. textbook so filing complaint On public system used in the education injunction in preliminary for a motion opinion expresses or re- an case, Judge, presumably District lates to a shall theories complaint alleged the uncon- because give in the same and un- text-book stitutionality statute of state- оf a state subject der the same commensurate convening initiated the application, wide equal attention emphasis amount of to. and an (See three-judge court. U.S.C. origins and crea- on. (1970) ). §§ tion of man and his world theories, appeared then The State same is recorded in other including, noting that the same filed a motion but not limited to. pending then in the Chan- question was Genesis account in the Bible. The eery County, Davidson 32 L.Ed.2d 257 U.S. Tennes- see. Tennessee moved that the federal court dismiss complaint, or' in the per The federal courts are not alternative, enter an order of abstention otherwise, however, mitted to shut their pending final adjudication. state court complaint to a of federal constitu doors hearing without reach- Without possible tional if there is a violation even remedy merits, three-judge court en-

ing the being pursued. which is order, taking notice of the state tered an Telephone Telegraph City Home & Co. v. adjudi- abstaining from litigation, court Angeles, of Los same, disposition pending final cation (1913); Kasper 57 L.Ed.2d 510 retaining jurisdiction of the case. but Pontikes, Harman v. Forsseni L.Ed.2d us, thereupon filed a Plaintiffs-appellants seeking ap- jurisdictional statement In this last case the peal to the United States Supreme Court said: order for After a Court. filing response from the and the State If the question, state statute in al- same, following was en- the order though interpreted by never a state tered: tribunal, subject fairly is not to an interpretation which will render un- judgment is vacated and the necessary1 substantially modify or the the case is remanded to United States question, federal constitutional it District District Court for the Middle duty of the federal court to exer- so that it enter a of Tennessee jurisdiction. cise properly its invoked judgment timely from which a fresh Bullitt, Baggett 375- appeal may be taken to the Court of 1316, 1324-1326, Appeals. [84 Thus, “recognition 377]. Although protective appeal previ- had the role of state courts as the final court, ously timely been filed with this expositors implies of state law no dis- District Court reentered regard primacy for the of the federal 26, 1974, February plain- its order of judiciary deciding questions in of fed- tiffs-appellants ap- have filed notice of England eral law.” v. Louisiana State peal, has now been briefed Examiners, Board of Medical argued this court. before 415-416 [84 parties Sep- advised that on have 440], Chancery tember Court of Forssenius, supra Harman v. at 534- Tennessee, County, Davidson decided the 35, 85 S.Ct. at 1182. merits, holding case before it on the mind, principles With these in we turn the statute attacked was in violation of to an examination of the statute itself First Amendments. and Fourteenth against princi- the federal constitutional appealed, thereby sus- State ples upon. which are relied pending the effectiveness of the Circuit until the Court decree Court of THE FIRST AMENDMENT Tennessee decides case.

The First Amendment to the Constitu- says applica- tion of the United States ABSTENTION part: ble Congress appropriate Abstention is an shall make no law respect- re ing religion, establishment of or sponse ‍​​​‌‌​​​‌​​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌​​​​​​‌‍complaint alleging to federal thereof; prohibiting the free exerсise unconstitutionality of a state statute interpretation where of its own ambiguous might statute serve to render The Fourteenth Amendment to

it inoffensive to the federal Constitution. Constitution of the says United States MacMullan, Lake Carriers’ Ass’n v. 406 applicable part: creation) (and

No State any shall make or tion other theories of enforce time, abridge law which shall with commen- privileges printed at the same As equal emphasis. immunities citizens of the United surate attention and States; any theories, except only nor deprive shall State all such Gen- to life, any person liberty, theory, print must property, esis textbook law; process provi- without due But deny quoted nor above. disclaimer any person jurisdiction printing within its allow the so in Section would equal protection creation as set the laws. the Biblical account of U.S. of any amend XIV 1. without such dis- Const. forth Genesis legislation is claimer. The result of this previously indicated that the We have clearly preferential position defined complained directly of does op- creation as the Biblical version of It teaching forbid the of evolution. posed any development account of the does, however, prohibit the selection of man based on scientific research any textbook which teaches evolution to en- reasoning. For a state to seek unless it also contains a disclaimer stat- preference by such a law is to seek force ing that such is “a as to doctrine accomplish very establishment of origin and creation of man and his religion First Amendment to which the represented world and is not to be scien- Constitution the United States tific fact.” ex- And the same statute squarely forbids. pressly requires inclusion of the Gen- (if any esis version of creation version at provisions We believe the taught) permitting all is while that ver- obviously in viola are Tennessee statute printed sion alone to be without prohibition the First Amendment tion of (Section above 2 of disclaimer. the stat- the establishment any “respecting law “Provided, says: above how- quoted ute au religion” phrase that has been of as ever, Holy that Bible shall not be Epperson in thoritatively interpreted textbook, hereby defined as a but is de- Arkansas, S.Ct. work, clared to be a reference and shall (1968),and Lemon v. Kurtz required carry not the disclaimer be man, S.Ct. textbooks.”) provided Fur- аbove thermore, teaching “the of all occult or origin satanical of human is ex- beliefs In Epperson act,” pressly presum- excluded from this said: ably meaning religious that beliefs any event, we do not rest our deemed “occult” or “satanical” need not upon decision vagueness asserted printed biology along in texts with of the statute. interpreta- On either the other theories. tion of its language, Arkansas’ statute respects We believe that in several cannot stand. It is of no moment under consideration unconsti- whether the law prohibit is deemed to face, tutional on its that no state court mention of theory, Darwin’s or to for- it, interpretation it that of can save and any bid or all of the infinite varieties case, clearly in this the District Court of communication еmbraced within the abstaining rendering erred in from a de- “teaching.” term Under either inter- unconstitutionality termination of the of pretation, the law must be stricken be- the statute on its face. cause its conflict with the constitu- prohibition First, tional of state laws re- requires any the statute that specting religion an establishment expresses opinion textbook which prohibiting or the free origin exercise there- prohib- about of man “shall be overriding of. The fact is that Arkan- being from used” unless the ited book law body sas’ selects from the opinion specifically states that is “a knowledge particular segment theory” represented and not “is to be proscribes it for the sole reason that it scientific fact.” The statute also re- is deemed to particular conflict with a quires that thе Biblical account of crea- doctrine; is, religious par- freedoms is that with a of constitutional tection in the com- interpretation ticular of the Book of more vital than nowhere munity , schools,” religious particular Genesis of American Shelton Tucker, group. U.S. [81 rooted in the Nation. freedom. The antecedents of % many and They unmistakable. foundation :{g are fundamental today’s soil ^[*] They decision ¡fc our are this Court said L.Ed.2d 629] “does orthodoxy over the classroom.” Regents, not tolerate laws that cast a [87 Keyishian First Amendment 231] 675, 683, 17 (1960). As v. Board pall democracy, Government in our There is and can be no doubt national, and must be neutral in mat- permit the First Amendment does doctrine, religious theory, ters of practice. and any teaching require State may It not be hostile to learning princi- must be tailored religion advocacy or to the of no-reli- any religious ples prohibitions or aid, foster, gion; and it or dogma. sect or In Everson v. Board promote religious one religion or theo- Education, Court, upholding against ry against another even provide a state law to free bus service opposite. militant The First Amend- children, including those at- to school governmental ment mandates neutrali- schools, tending parochial said: “Nei- ty religion religion, between nor the Federal Govern- ther State [a religion nonreligion. between pass can laws which aid one re- ment] ligion, early As religions, prefer this Court said: aid all one “The law heresy, religion knows no and is com- over another.” dogma, mitted to the support of no 91 L.Ed. [67 711] establishment of no sect.” Watson v. Court, following At the Term of Jones, 13 Wall. [80 Education, v. Board of McCollum 20 L.Ed. This has been the in- 666.] U.S. 203 92 L.Ed. [68 649] terpretation great First Amend- (1948), the held that Illinois applied ment which this Court has in pupils not release from class to could many problems and subtle which instruction in the attend classes of the ferment of our national life has buildings religion their school in the of presented for decision within the said, This, choice. it would involve the Amendment’s broad command. using tax-supported property in State opera- in the interposition Judicial religious purposes, thereby breach- system public school which, tion of separation” ing the “wall of ac- requiring care problems raises Jefferson, Nation cording the First Amend- however, courts, Our and restraint. to erect ment was intended between First apply the failed to have not Id., church and state. at S.Ct. [68 in our educa- mandate Vitale, Amendment’s Engel 461 at also 465]. to safe- essential system where tional S.Ct. [82 values of free- guard the fundamental (1962); Abington L.Ed.2d School 601] inquiry and of be- speech of Schempp, dom District v. [83 large, public education By and (1963). lief. 10 L.Ed.2d S.Ct. 844] control committed our Nation is study religions and of the While Courts authorities. state and local literary Bible from a and historic in the intervene cannot do not and presented objectively viewpoint, arise in which of conflicts resolution part program of a secular of educa- systems of school daily operation tion, collide with- the First need not. sharply directly which do prohibition, Amendment’s State “values. constitutional basic implicate practices adopt programs hand, vigilant pro- the other colleges On which public “[t]he in its schools oppose” Id., “aid or any religion. at (1968); finally, the stat- 1060] 1560, 1573], S.Ct. prohi- This [83 ute must not foster “an excessive bition is absolute. It forbids alike the government entanglement with reli- preference religious doctrine or Walz, gion.” supra, at 674 [397 U.S.] prohibition which is 1414], at [90 antagonistic deemed particular to a Kurtzman, Lemon v. dogma. As Mr. Justice Clark stated in 2105, 2111, 29 L.Ed.2d 612 — 745 Joseph Burstyn, Wilson, Inc. v. “the (1971). legitimate state has pro- interest While the requirement prefer tecting any religions or all from views ential treatment of the clearly Bible of distasteful to them . .” . . fends the Establishment Clause of the [72 First Amendment, the exclusion at the L.Ed. The test was stat- 1098] end of Section 1 of the statute would Abington ed as follows in Dis- School inextricably involve State Textbook Schempp, supra, trict v. at [374 U.S.] Commission in the most difficult and are the [83 1571]: “[W]hat hotly disputed of theological arguments purpose primary and the effect of the in direct conflict with Chief Justice enactment? If either is the advance- Burger’s third standard. Throughout religion ment or inhibition of then the human history the God of some men has scope legisla- enactment exceeds the frequently regarded been as the Devil power by tive as circumscribed incarnate men of religious other per Constitution.” suasions. It would utterly impossible Arkansas, Epperson v. for the Tennessee Textbook Commission 106-07, 103-05, to determine religious theories (Emphasis add were “occult” or “satanical” without ed.) (Footnotes omitted.) seeking to resolve theological argu Burger Lemon Chief Justice said: ments which have embroiled and frus In the absence precisely stated theologians trated through ages.1 prohibitions, constitutional we must requirement religious that some draw lines with reference to the three concepts creation, presum- adhered to against main evils which the Establish- ably by citizens, some Tennessee be ex- ment Clause was intended to afford cluded on grounds such in favor of the protection: “sponsorship, financial Bible of the Jews and the rep- Christians support, and active involvement of the prefer- resents still another method of sovereign religious activity.” Walz ential particular treatment of faiths Commission, v. Tax and, course, state law forbidden [90 697] the Establishment Clause of the First Amendment. Every analysis in this area be- must We deem the two constitutional viola- gin with consideration of the cumula- tions described abоve patent to be developed by tive criteria the Court obvious on the face of the statute and many years. over Three such tests impossible any for interpretation gleaned First, may be from our cases. cure. Under circumstances, these we legis- the statute must have a secular find no need to determine whether the second, purpose; principal lative its terms are, “occult” and “satanical” primary effect must be one that nei- by appellants, claimed also void for religion, ther nor advances inhibits vagueness under the Due Process Clause Allen, Board of Education v. 392 U.S. of the Fourteenth Amendment. Nor for 236, 1923, 1926, S.Ct. [88 religious “satanical,” opinions Eng. enees of accompanied by “Satan” and are 1. See Oxford Woods, (1933), History employing denunciation Diсt. 116 and W. A the terms “Satan” or (1973) frequently “the devil.” differ- The Devil note how feel it is neces- in their search upon plaintiffs the same reason do we door house appellants’ timely of their federal sary pass or desirable to vindication repre- that the statute as drawn constitutional claims. claims Speech of the Freedom sents violation adjudica of federal Such denial the First Amend- Press Clauses of peculiarly inappropriate when the tion is ment. upon the First rests constitutional claim Consti Amendment to the United States RELIEF Amendment case tution. In First Supreme with interest noted: We have examined Court United States Court, Supreme by the order entered plaintiff force the In such case to along jurisdictional statement with the action who has commenced a federal Supreme by in the Court filed pro court delay of state suffer response and the thereto filed imper ceedings might itself effect plaintiffs. We believe that the order very constitu chilling of the missible properly interpreted can as indication be protect. right seeks to tional he that no District Court was Pfister, 479, v. 380 U.S. Dombrowski necessary in this action under 28 U.S.C. 1116, 1120-1121, 14 486-487 S.Ct. [85 because, (1970) as we have deter Bullitt, supra, 22]; Baggett v. above, patent mined this state statute is 1316, 360 84 at 378-379 U.S. S.Ct. [377 ly Bailey v. Pat unconstitutional. See 1326, (1964)]; at terson, 549, 7 82 S.Ct. U.S. Button, supra, at NAACP [371 (1962), City L.Ed.2d 512 Turner v. 415 83 Memphis, 369 82 S.Ct. Cf. Garrison (1963)]; L.Ed.2d 405 L.Ed.2d 762 Louisiana, 64, 74-75 [85 particularly similarity 209, 215-216, 125]; We be- note Smith language vacating California, tween the re- [80 manding employed by Supreme 4 L.Ed.2d 205]. Pennsylvania Utility Public Koota, 389 U.S. Zwickler v. Pennsylvania Commission v. Railroad 19 L.Ed.2d 444 88 S.Ct. Co., judgments of the District and the order entered vacated and the сase is remanded for in this case. entry dissolving of an order the three- may, however, (as argued It be does judge court and an order the District dissent) that the Court or Judge before whom the case was filed might interpreted holding der as a granting preliminary injunctive relief in jurisdic that the Court lacked opinion. accordance with this tion over direct from the order of abstention entered court in this case because the order was CELEBREZZE, (dissent- Circuit Judge

interlocutory granting and not one or de ing). nying preliminary See, injunctive relief. I respectfully ‍​​​‌‌​​​‌​​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌​​​​​​‌‍dissent because I do not MTM, g., Baxley, - U.S. -, e. Inc. v. interpret the Supreme Court’s remand 43 L.Ed.2d 636 order holding as a that Tennessee’s biolo- Employees Gonzalez v. Automatic Union, Credit gy textbook law is patently unconstitu- tional. The Court’s order was (1974); Cox, L.Ed.2d 249 v. Goldstein 396 as follоws: 471, 671, 90 U.S. S.Ct. 24 L.Ed.2d 663 (1970); judgment Rockefeller v. Catholic Medical is vacated and the ease Center, 820, 1517, 397 90 25 U.S. S.Ct. is remanded to the United States Dis- L.Ed.2d 806 As we see the mat trict Court for the Middle District of ter, however, the abstention order did in may so that it enter a fresh deny injunctive effect preliminary judgment relief from which a timely appeal effectively shut the federal court be taken to the Court of Appeals.

493 Union, holding that three- Employees matic Credit 419 is U.S. This not necessary 90, 289, (1974); was 95 42 L.Ed.2d 249 Court S.Ct. judge District 1, Babbitz, state v. 400 U.S. this statute McCann 91 because S.Ct. unconstitutional,” majori- 12, (1970); as the 27 1 Gunn v. L.Ed.2d Univer- patently 383, Committee, the sity order. Had 399 U.S. 90 the remand S.Ct. ty interprets that, 2013, (1970); it would 26 684 v. meant L.Ed.2d Mitchell Supreme Court Donovan, 427, 1763, 90 have remanded 398 S.Ct. 26 and would have said so (1970); with to Rockefeller v. directions L.Ed.2d 378 Catho- the Court “to District 820, Center, appropriate in- Mediсal 397 granting lic 90 decree S.Ct. enter relief,” 1517, did in v. as it Turner 25 806 L.Ed.2d Wilson v. junctive Lavaca, 352, 82 Memphis, City 369 U.S. of Port 391 U.S. City of (1962), L.Ed.2d 762 20 L.Ed.2d 636 S.Ct. See Patterson, Heffernan, Bailey also Thoms v. F.2d v. (1962), the cases 1973), grounds, on other (2d Cir. rev’d support of its view. majority cites the Furthermore, view if this of the Su- 1154 valid, majori- order is the preme Court’s appeal the falls within rule an the merits of the Ten-

ty’s discussion of Cox, nounced in Goldstein surplusage. pure nessee statute (1970), 24 L.Ed.2d 663 proper interpretation three-judge I that the that an order of a believe district Court’s remand order is short of Supreme adjudicating the court which falls Court, Supreme than of a challenged rather the the constitutional merits that this Court, grant review the merits of the or deny pre should statute and does Court’s abstention relief is not three-judge injunctive appeala- District liminary (1970), Rathеr, Supreme 28 U.S.C. Court. § order. Under ble juris- Appeals does not have Court Court of must Supreme relevant review appeal’s review abstention orders of diction to merits. Hutcherson also Lehtin, courts which do not three-judge district interlocutory deny perma- (1970), or grant Supreme or where al- injunctive relief. Section 1253 nent remanded for consideration Court appeal an order from a party appeal lows a to of an of a Ninth Circuit three- to district court three-judge judge court order which district had ab “order only granting considering aspect if it is an or one Court stained from denying interlocutory an or plaintiffs’ ... constitutional attack on a (N.D.Cal. injunction.” (313 F.Supp. The abstention permanent does appealed grant 1970)). from District Court order deny injunctive Here the tоok no relief; it merely post- prelimi motion for Appellants’ action decision, dismissing permanent injunctive relief, the nary without pones so Thus, complaint. required this case is within a that Goldstein v. Cox the Su appeal where the growing preme line decisions Su- Court to remand to jurisdiction denied its preme has Court Court1.* this three-judge orders of appeals language from over used years courts. See Gonzalez v. Auto- Court been standard for district several Baxley,- U.S. -, Su- for the desirable been have It would explained appeal more its action “a direct Will have preme lie to this appears be the first instance from the fully. Court under order of a This three- juris- judge denying interlocutory has declined federal court where permanent injunctive only appeal ordеr of an abstention relief over where such diction upon court. The Hutcher- rests order resolution of the district merits of part presented also but constitutional claim abstention involved case below.” son This holding rulings crystal court. the district we, makes clear other concerned rather Supreme Court, jurisdiction than have printer’s, * hear opinion was court’s ab While MTM, Inc. stention order. held Supreme Court 494

jurisdiction judge jority when should have constitutional judge tion that gued by they 79 decision on rather abstention § are Court 1253. Having (2d order’s the case lack district ed. remanding than simply district court suggests procedural Had this 1973). I do not believe jurisdiction jurisdiction order. itself, validity, dissolved itself for 9 J. under 28 courts ground directed parties involves “no claim,” Moore, exists. hear We happened, аppeals quagmire, on the we —that not briefed should have over the should ‍​​​‌‌​​​‌​​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌​​​​​​‌‍do so.2 the under that Federal U.S.C. and therefore might appeal from three- ground that substantial as the ma the single 28 Supreme rest our want of Practice § that we absten- U.S.C. Court,, or ar- three- held legal significance. the effect of substantiality viously ly “wholly” Baltimore, tious,” Bailey Patterson, such for this “wholly 33, sky, L.Ed. 152 tial. upon the state quire the convening court Title 28 U.S.C. frivolous,” “Constitutional insubstantiality” concepts when the without purpose insubstantial,” 54 L.Ed. 482 (1933). ^[549] v. prior “obviously” Hannis merit,” has been as “essentially ficti statutes is insubstan constitutional constitutional attack § decisions 551, In the 2281 285, 288, (1910); Distilling ibid.; Ex limiting 7 L.Ed.2d equated does not re have 369 parte three-judge context upon “obvious U.S., 4-5, claims, cogent Co. v. words Pore with “ob 512; at import those judge district words that would have claims appro- entered priate constitutionally relief only based on insubstantial holding if prior inescapably- Tennessee statute decisions patently is render uncon- frivolous; previous stitutional on claims its face. This deci is the ground merely sions that on which the render majority claims rests its questionable doubtful or decision. merit do not render them insubstantial for pur I concur. The is- cannot constitutional poses of 28 U.S.C. 2281. A claim § “wholly case is not insubstan- sue in this “ only insubstantial if ‘its unsoundness purpose determining tial” for the clearly so previous results from the de three-judge whether' a district court is cisions of this court as to foreclose the § necessary under 2281. subject and leave no room for the in Osser, reading Goosby A v. ference that the questions sought to be 93 S.Ct. 36 (1973), subject raised can of controver reveals a strict standard refusing for ” sy.’ 409 U.S. at 93 S.Ct. at 858. convene a district court on ground that the constitutional Goosby plaintiffs issue had attacked as involved is In Goosby, insubstantial.3 Pennsylvania unconstitutional a Supreme unanimously held: allegedly prohibited persons jailed (2d 1973) graham, (reversing appealable F.2d 102 An order Cir. 2. abstention to this complaint remanding 28 U.S.C. dismissal for Court under Idlewild consideration, citing Liquor Corp. Epstein, court 715 n. Goosby). pre- “strict test” of Contrast Druker v. Sullivan, Goosby (1st F.2d Johnson v. New York State 1274 n. 3 decision Cir. (2d Department, 1972). 449 F.2d Cir. Education vacated, 1971) strong dissent), (with jurisdiction We have over this from a Like three-judge district court because its order is Circuit, Goosby wise, the Third whose deci appealable directly Court. (3d 1971), reversed, sion, was 452 F.2d Cir. jurisdiction extends Section 1291 our to all dis- recognized “has appeals “except trict court where a direct re- requirement interpreted substantial be had in the view Court.” liberally” Goosby. question since Far federal Goosby has caused other circuits to restrict ley Farley, (3d 481 F.2d Cir. complaints by single-judge dismissals of dis Tarr, 1973); (3d Rowland 480 F.2d 545 Cir. ground trict courts that constitutional 1973). See, g., issues are e. insubstantial. Roe v. In voting. trial The The the Supreme before from decisions of Third Cir- construing affirmed of the Free cuit the dismissal the com- Exercise and Es- by judge, a plaint single district tablishment Clauses of First citing Comm’rs, have drawn McDonald Board of Election Amendment fine distinc- 802, 1404, 22 tions and have laid down 89 S.Ct. rules not (1969), easy They apply. where the have been deci- Court had upheld constitutionality of an sions divided courts. 435 F.2d at Illinois denying ballots 630. pre- absentee trial detainees. The Court re- Aсcordingly, we held in Protestants Circuit, versed Third holding that question present- a substantial that was upheld right merely McDonald by complaint three-judge ed and that a to limit its state access to absentee ballot district court should have been convened Goosby complaint The procedures. al- complaint to consider it. attacked pretrial that leged Pennsylvania detain- constitutionality of a federal statute absolutely prevented were ees from vot- loaning which authorized “the library of case, ing. This was a different said the directly paro- books and materials Court, at least for the purpose schools, rather than the issuing chial of determining a three-judge whether directly to the textbooks school chil- should court have been convened. dren,” proсedure having the latter been upheld in Board of Education of Central biology textbook stat- Tennessee Allen, No. 1 v. School District 392 U.S. challenged laws is different from ute Arkansas, Epperson (1968), 21 L.Ed.2d impossible satisfactorily It is to recon- Kurtzman, Lemon holding our cile Protestants with the con- decision also here. Anderson v. majority. holding trary to (6th Richardson, 1972). 454 F.2d 596 Cir. statute which overturned Epperson a. Epperson, Like Lemon does not foreclose publicly em- it unlawful for made argument statute, all that teach the teacher ployed thereof, part constitutional, or a at The Tennessee evolution. Darwinian least within the strict test set forth in statute, contrast, no contains criminal Goosby. The “establishment” “en- that religious and prescribes sanctions tanglement” are not issues “fictitious” or the creation be evolution theories They deserve “frivolous.” consideration teaching biology. in included They district court. Thus, Epperson it cannot be said the cursory briefing warrant more than inference that for the room “leave[s] argument which the parties gave [by Ap- raised sought to be question appeal, on this since them the basic is- subject of controver- can be the pellees] ju- sues briefed before us were those of Goosby, at sy.” Indeed, risdiction and abstention. itself, three-judge District Court briefing, had benefit of stated that it Likewise, does v. Kurtzman Lemon “persuaded was not [statute] Appellees’ defense inquiry into foreclose clearly lacking validity.” in constitutional Lemon, itself Tennessee statute. majority’s only decision not vio- separate opinions, fivе provoking case Goosby, lates the rule set forth in but it autho statutes certain down struck with the public Congres- funds does accord basic expenditure rizing the purpose sional behind support to non kinds particular purpose held in court statutes. That was suc- As this schools. public cinctly by Mr. United stated Justice Frankfurter Americans and Other Protestants States, (6th Phillips Cir. v. United States, 435 F.2d v. United 85 L.Ed. 800 denied, 1970), cert. (1941): (1971): procedural crux of the is business district court should have been allowed protection against improvident an validity.5 determine its only a handful of cases I have found by a state-wide doom federal court of or a where the Court Circuit legislative policy. a state’s entry has or ordered the affirmed three-judge Through the district court against operation the injunctive relief of procedure Congress intended to limit the single judge district a state law of power single judges of district enjoin the statute ground that lacked on the operation the of state laws.4 of constitutional even colorable claim single judge’s Goosby, decision the principle). validity (the Bailey complaint, the had been to dismiss thus purpose infringing the basic behind prominent The most instance involves 2281. decision was section Its nonethe- mandating laws racial segregation, reversed. less in the face of Court decisions which Here, however, majority litigable “foreclosed as a the orders a issue” validity segregative the of operation the single judge enjoin statutes. Patterson, Bailey v. may 31, 33, 369 The law U.S. statute. not re 82 (1962); 7 512 L.Ed.2d quire City that the Tennessee not be of Barthe, New require does Orleans v. 376 enforced. law that a 84 (1964); court be 602 three-judge .district convened to Turner City v. of Memphis, make that determination. A 369 82 . (1962); is needed 7 762 court determination “to L.Ed.2d allow Evers v. Separate Jackson Municipal a more authoritative determination and School Dis trict, (5th 328 opportunity predilec 1964); for individual F.2d 408 Cir. less Sim politically in sensitive kins v. Moses tion H. Cone Hospi emotional Memorial tal, Wickham, v. 323 (4th 1963); areas.” Swift & Co. 382 F.2d 959 Cir. City of Adams, New Orleans 15 v. 321 F.2d 493 (5th Meier, 1963); 194 Cf. Potter Cir. v. United States v. City of (8th Jackson, 1972). (5th F.2d 588-89 Cir. 318 1 458 F.2d 1963); Cir. Flax, room slightest argument Given the for Potts v. (5th F.2d 284 Cir. 1963); prior Fair, that of the decisions Meredith 305 F.2d 343 (5th Cir.), denied, do not foreclose the possibility cert. statute, (1962); that Tennessee or a part Christian thereof, constitutional, Jemison, (5th is F.2d 1962). Cir. history a discussion For majority’s three- 5. The decision leaves substantial statutes, Wright, judge court see C. exactly parts Federal doubt as tо what of the Tennes- Hutcheson, “A Courts Case majority see statute are unconstitutional. Judges,” Three Harv.L.Rev. proviso in finds that section 2 which ex- cepts Holy requirement from the Bible that by single The resentment which action carry accounts the creation disclaimers of engendered judges had before the enactment accuracy scientific violates establishment 2281 is in the of section evident remarks of clause of the First Amendment. The state- during Carolina Senator Overman North teaching ment at the end of that section “the on that debates section: all occult or satanical beliefs of human ori- Magazine Moody’s in “I saw last week gins” biology in need not be included text- are 150 cases of this that there kind now is found books condemned ‍​​​‌‌​​​‌​​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌​​​​​​‌‍“excessive judge where one fеderal has tied the hands entanglement” principle. With officers, these two governor, the state and the statute, majority’s items removed from the attorney general. My experience . . . is gives opinion guidance single judge delayed the state is sometimes a solid grant “preliminary injunc- who is instructed to collecting year . in taxes. . Whenever opinion.” tive relief in accordance with this up judge enjoins in a State stands one operation enjoin Whether he is to of the entire attorney-general, governor and the particular prohibit statute or to actions based it, public people resent sentiment particular objectionable on sections is my State, unclear. stirred, you as it was in find despite severability This is true clause in the rising up people of the State rebel- operable any statute which leaves Cong.Rec. 7256 lion.” provision held to be unconstitu- tional. Florida, Bailey principle F.Supp. use of the A second State Currie, (M.D.Fla.1972). Alabama Liberties Un- Civil Professor whose occurred Wallace, (5th Cir. Three-Judge 456 F.2d 1069 “The District Court article ion v. affirmed 1972), Litigation,” where the Fifth Circuit in Constitutional U.Chi.L. single district injunction issued Rev. 1 remains the classic work n subject, a statute enforcement of “the against warned judge public reading in the [Bailey] principle Bible is a violatile one that requiring schools, explicit easily get contravention out could of control.” Abington Schemp, District of School previously Circuit noted This 1560, 203, 83 10 L.Ed.2d 374 U.S. judicial by the placed on resources drain (1963). 844 Jones v. court statutes. (6th 1970), Branigin, instance 433 F.2d Cir. third involved the reversal 576 A denied, 977, 1205, judge’s from 91 single denial of relief cert. making it a But this Circuit operation of statute L.Ed.2d 327 28 print “any to or circulate mandat always procedures followed misdemeanor ; boycott Protestants, . . ban Congress. supra . that a by notice ed See contemplated Richardson, or has existed or is v. 454 F.2d 596 exists Anderson firm, any person, corporation, 1972). against (6th The court Cir. persons doing pro a lawful sometimes lead to futile procedures association by The Fifth Circuit found “le and consideration business.” remands to cedural support judges single judge for its decision that can gion” three issues Farley, easily Farley was overbroad on its face and decide. See v. 481 statute Alabama, (3d 1009, 1973). v. rem Thornhill State of Cir. The cited F.2d however, Congress. 84 L.Ed. 1093 I edy, up to nearly apply present which had held a identical section in its would companion unconstitutionally interpreta statute under its and current form Wallace, I would not vague. Kirkland 403 F.2d Court. tion 1968). (5th pro process Congress Cir. The decision has mandated order strong voked a dissent. 403 F.2d at 417— case to be in the for this short-circuited majority prescribes. 25. manner only The fourth and other use of dissent, there is I am Because Bailey principle in a Circuit Court my view explain depth need vagrancy volved attack on Arizona’s by this presented issue basic —(cid:127) The Ninth statute. Circuit held that Pa in ab- erred District Court whether Jacksonville, pachristou City of the merits decision on staining from stated, my Simply claims. Appellants’ (1972), which had nearly overturned a erred is that District position vagrancy law, governed identical con- court state abstaining because no Nemetz, Anderson v. case. 474 F.2d 814 ulti- avoid could of state law struction 1973). (9th Cir. point Ninth Circuit issues of the constitutional decision mate out that the state ed defendants conced statute. by the Tennessee presented the statute constitutionally ed that was Su- narrowly Tennessee However merely contesting indefensible were the statute’s might confine preme Court standing and abstention issues. Its reach, must remain. its basic thrust Tennessee by the is review core cases, central supports None of these the ma biology that to see Commission Bailey Textbook jority. principle meant was disclaimers carry scientific textbooks confined to to be instances where the of creation any particular only defense of statute would raise textbooks biology that evolution “frivolous” or “fictitious” constitutional the creation religious accounts Kirk, arguments. Gong v. contain 375 F.2d entangle- Whether (5th evolution. 1967); 729 n. Cir. Trombetta v. 2281,” Note, Section 77 Harv.L.Rev. “The under See also dure 66. 32 U.Chi.L.Rev. Scope Three-Judge and Proce- District Court: decide, jurisdiction govern- between must result of the Court ment that per- Appeals exceed the ends. We religion jurisdic- will without ment and must tion consider the question Appellants’ merits degree is missible Protestants, contentions, constitutional be faced. ultimately and I intimate no view about them. at 630. 435 F.2d improper. summary, I therefore believe Abstention the Su- Forssenius, preme 534- Court’s remand order Harman meant only thing—that one should decide 375—79, Bullitt, the merits of the District Baggett v. Court’s absten- tion order. concerning The constitutional issues pro constitutional that a state fact are not does “frivolous” or also decide case might “fictitious.” They vision merit abstention, because the consideration a three-judge warrant district court, as substantially required by simi here is provision U.S.C. § 2281. The District Court federal First Amendment. should lar have ab- stained, Bland, but 199 Tenn. should have promptly Carden v. adju- Appellants’ dicated (1956). Wisconsin v. Con Thus, claim. S.W.2d we stantineau, 27 should reverse District Court’s order remand for consideration of the merits of the Tennessee statute. We on which the District Court case jurisdiction have to decide the consti- abstention, justify Reetz Bo relied to tutional issues ourselves. zanich, apply does not to this the basic dispute. Reetz issue con resources, management of natural

cerned stated was “a which the Court great state concern.” matter of Furthermоre, at 790. held the Alaskan ROSENFELD, Lt. Alvin A. Constitution, M.D., which deals detail with Petitioner, Appellant, interests, rights private fishery might “the nub the whole contro 87, 90 versy.” 397 U.S. at S.Ct. at 790. Rear Admiral Richard E. RUMBLE et Thus, Reetz a far case from different al., Respondents, Appellees. ours, challenged where state statute essentially ground— one is attacked No. 75-1011. conflict with constitutional clause United States Court Appeals, guaranteeing freedom of exercise and First Circuit. religion. freedom from establishment of pro- should District Court have Argued April 9, 1975. adjudicate Appellants’ claim ceeded to May Decided on the merits. Were this Court to reverse absten- order, only it could con- remand for

tion sideration the merits three-judge District Court. As the Goosby, held in Supreme ‍​​​‌‌​​​‌​​‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌​​​​​​‌‍ 8, 93 at 522 n. that a determined claim is once it for a court to one properly

Case Details

Case Name: Joseph C. Daniel, Jr. v. Hugh Waters, Chairman, Textbook Commission of the State of Tennessee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 10, 1975

Citation: 515 F.2d 485

Docket Number: 74-2230

Court Abbreviation: 6th Cir.