Marvin Meltzer, Etc. v. Board of Public Instruction of Orange County, Florida, Etc.

If both claim. the settlement $10,- half fault, pays Tidex 150.55. interest bear paid shall

11) all funds That (7%)per of seven rate annual at the time until the paid date

cent pursuant is made adjustment litigation between

the results Tidex.

Sun, Teledyne MELTZER, etc., al., et

Marvin

Plaintiffs-Appellants, PUBLIC INSTRUCTION OF OF

BOARD COUNTY, FLORIDA, etc., et

ORANGE

al., Defendants-Appellees.

No. 75-1423. Appeals, Court of

United States

Fifth Circuit.

March

Rehearing En Banc Granted 25, 1977.

May

561 Bornstein,

Jerome J. Orlando, Fla., for plaintiffs-appellants. Rowland, Jr.,

William M. John Bowen, W. Orlando, Fla., for defendants-appellees. BROWN, Before Judge, Chief and TUT- GEE, TLE and Judges. Circuit BROWN, JOHN R. Chief Judge: this, their second visit1 to the Court of Appeals in this the plaintiff-appel- lants, parents of attending children public Orange Florida, schools in County, appeal from the dismissal of their case District Court. We find that the District properly injunctive denied relief to plaintiffs, improperly but denied declarato- ry Accordingly, relief. we reverse. The Board Meetings The facts of this case undisputed. On August 24, 1970, Defendant, the Orange County Instruction, Board of Public held a meeting adopted calling resolution for a five minute to seven morning minute exercise in every school to consist of “a period of meditation which shall include the opportunity prayer for individual and Bible devotional or meditation presented by groups organizations or an individual,” followed by patriotic exercise. At the same meeting, a member of the Camp permission Gideon asked dis- Orange County, Florida, Cir., 1973, 1. The first was Meltzer v. Bd. of Pub. Instruction of 480 F.2d 552. the students at the meeting, Bibles to At tribute Gideon plaintiffs eventual re- approved. request peated complaints schools. their about the devotion- al and the distribution of Gideon Bibles. Board, meeting At the next Counsel Board, however, for the gave his plaintiffs eventual September opinion the morning exercises were not to the Board that complained in this case illegal, citing Chapter 231.09(2) of August 24 violated their reli- resolution the Florida Statutes:2 rights. Board deferred action on gious policy “The aids school officials to carry until it could conduct a sur- complaints out their specific duties set forth in 231.- August exactly determine how the vey to 09 among ‘inculcate, which are to by pre- being implemented and to 24 resolution was cept and example . . . practice regarding of its counsel opinion obtain the . every Christian virtue . . ..’ policies and their im- legality of those Those who feel that is uncon- plementation. bring stitutional should their case to meeting, survey the At the third Board Court.” September meeting was ordered in the The thereupon Board modify refused to survey revealed that 70 of released. This policy regarding opening day exercises or to Orange County prac- were the 97 schools direct any change in its implementation. reading, ticing daily generally Bible read 7, 1970, On October the Board issued a, a class student or the class- aloud to guidelines' concerning the distribution of Bi- schools, room teacher. In some bles or religious other literature.3 reading given over Bible was school some, public-address system. the Lord’s The Trial Court —Round I Prayer survey was recited. The showed only County’s that four of the 97 schools On October plaintiffs filed their prayer reading. nor Bible complaint had neither action, as a alleging (i) class 231.09(2) Chapter pro- of the Florida Statutes procedures The contained the at- vides: guidelines tached only procedures are the personnel.— 231.09 Duties of instructional authorized this office and shall be the sole pub- Members of the instructional staff of the handling method of material of this nature. schools, subject regula- lic to the rules and GUIDELINES tions of the state board and of the school following guidelines princi- The for the board, perform following shall functions: pals Orange County District School (2) Example faithfully pupils. —Labor handling Board religious schools for of books earnestly and for the advancement of the or doctrine offered to the schools for free studies, deportment pupils in their and mor- emphasize distribution. We that we are di- als, every opportunity embrace to incul- and recting guidelines only religious these toward cate, by precept example, principles and intending modify books and doctrine not truth, honesty patriotism of and the general present policies guidelines practice every Christian virtue. regard to other literature. 3. TO: place designated A1. be within the school ALL ORANGE COUNTY PUBLIC SCHOOL facility religious for all books and literature PRINCIPALS may supplied by which groups be outside FROM: organizations. JAMES M. HIGGINBOTHAM 2. Books and literature be available to the Superintendent District only designated students at the location: provide 3. All faiths be allowed to books SUBJECT: and literature under the terms of these guidelines. BOOKS AND RELIGIOUS allowing 4. No distribution nor of distri- LITERATURE bution of books and literature be under- following guidelines The have been devel- classroom, through homerooms, taken oped by Attorneys ap- School Board assembly any portion or on books, school ply handling religious doc- property staff, trine, may students or outsiders. or literature be offered to guide- Periodic announcements be the schools These made for distribution. by you designated are to lines be reviewed in detail and literature is available at the implementation. place. are to receive immediate major religion. on its face 231.09(2) During is unconstitutional this hearing, § constitutionality 231.09(2) the inculcation of of § it commands because not put virtue; in issue. (ii) August Christian morning con- exercises

resolution and On December the District Court unconstitutional; to it are pursuant ducted issued its denying order the temporary re- is (iii) distribution Gideon Bibles that the order, straining grounds unconstitutional; (iv) that a Southern plaintiffs had failed to adduce sufficient planned Baptist program evidence to show the possibility irrepara- unconstitutional, 19 and October injury, ble or to make findings fact as to First being in violation Amendment morning exercises and the Bible distri- clauses, applicable as made However, bution. did order not stop through Amendment. states the Fourteenth there, but went toon discuss the legality of sought declaratory and complaint both reading Bible in the schools. The Court injunctive requested the conven- relief concluded that sponsor school cannot ing three-judge court.4 of a part Bible pro- devotional gram, although required the school is not 4, 1970, the District Court On November religion. hostile to Reference to the hearing to determine whether a tem- held a Bible as “inspirational” of an rather should restraining order issue. porary than a program permitted “devotional” one plaintiffs testimony presented (i) under the First Amendment if the refer- morning complained ex- parent who ence is a voluntary one by an ercise; who of two rabbis testified that student, individual (ii) the reference is reading “religious Bible to minorities” is the not school or sponsored. teacher The Court them, especially without inter- harmful to also noted that a Florida Brown v. reading Bible pretation, and the Orange County Board of Instruction, Public Jews, in a con- blasphemous to even secular 1960, Fla.App., 181, 128 So.2d could proba- inherently the reli- text because bly prohibit be read to distribution of Bibles Jews; testimony psy- and the gious to in the schools.5 to the chologist, who testified detrimental “religious 14, 1971, effect on minori- psychological January On the Defendants having readings from a book of a ties” of filed a of compliance6 statement with the may employee temporary “The restraining 6. school comment denial No or- any by group authority der is the decision to make not for the Board of Public literature, any pursue Instruction to or not make available in available viola- literature, interpreted by tion of any law as of such or the content constitutional Supreme the Court of the way concerning United States and influence others the litera- contrary, Florida courts. To the concerning taking reading ture or any Board should make and all revisions to the literature. wording prac- of its resolution to complaint sepa- Although 4. was careful to may necessary tice thereunder as to com- practices complained un- rate the of from the ply by with the law as enunciated the Su- statute, all constitutional it also stated that preme Court United States and the complained plaintiff actions Defendant’s Florida Courts.” upon, and to “were in reliance in furtherance of 6. 231.09(2) implement Chapter STATEMENT OF COMPLIANCE of the Florida Statutes.” pursuant Come now the defendants to the Order this Honorable Court entered on 5. The status these asides the District 4, 1970, December state follows: December 4 order was not made complying 1. Defendants with the Although clear not when delivered. labeled requirements Constitutional as set forth in such, declaratory to de facto it seems be a said Order. judgment warning school not implement to the board 2. Defendants will to continue —a go requiring period to too far in their Bible and distribu- the resolution of medita- paragraph required tion efforts. The final of the order tion and as further under Consti- gives something any hostility religion of its flavor: tution will not exhibit to 4, December order of but on hearing, plaintiffs Court’s District At the March 8 court 26, 1971, requested three-judge consider February plaintiffs filed a state- of the statute. constitutionality policy the Board’s alleging that had ment they were not argued that defendants changed operation. and was still in been not right concerning the stat- defendants to sue On March the District Court held responded that plaintiffs ute but hearing to determine whether or not De- pursuant to the stat- passed resolution was complied fendants had its December 4 hearing ute. No action taken was hearing, plaintiffs order. In the asked the Court. the District Court to order the Board to On March defendant filed a modify August 1970 resolution con- second compliance,7 statement of this time exercises, cerning morning expressed truthfully representing that it had changed change its confidence that a in the the word in the resolu- “devotional” resolution to again tion Plaintiff would be sufficient filed a correct minor “inspirational.” noncompliance,8 disclaiming statement illegalities in some of the morning exercis- any agreement appeal. es. agreed change Defendant the word- ing On resolution from December “devotional” District Court “inspirational.” order, issued a second in which it found that promote Compliance religion and will not Defendants’ Statement dated of secularism preference so as to show following: March and submit the those who Plaintiffs, counsel, believe in no over those 1. who Neither nor their do be- Court, lieve. represented have ever or to Acting spirit Defendants, else, anyone community or to that Plaintiffs’ har- mony, place religious objection adjective defendants will “sole liter- ‘devotional’ ature which be made being available to opening Board’s Defendant Orange County system only .”, Plaintiffs, nor have exercises . . libraries of the schools. counsel, Court, represented their to this herein, anyone Defendants or to else that DEFENDANTS’ STATEMENT OF litigation Plaintiffs continue this would not COMPLIANCE appeal any nor action of this Honorable Pursuant to the oral Order of this Honora- Court. Court, ble entered on March above-styled 2. Plaintiffs filed the suit for hereby Defendants following submit purposes: several Compliance: Statement of (a) object To to the resolution of Defend- upon representations 1. Based the of ant Board of Instruction which was Public during counsel for Plaintiffs made the hear- open to invitation the institution of Bi- ing 8, 1971, held on March that Plaintiffs sole reading, prayer, ble and other sectarian objection adjective was the “devotional” be- Orange public schools of the ing policy open- Defendant Board’s on Florida; County, ing exercises and that if the Defendants (b) object To actions of Defendant’s replace adjective would the “devotional” agents, servants, employees, by and “inspiration” with the noun the Plaintiffs reading, prayer and oth- institution of Bible litigation would not continue nor would the Orange County practices in er sectarian appeal any Plaintiffs Court, of action this Honorable public schools a result aforemen- and based further the subse- Resolution, of tioned which has been quent oral Order of this Honorable Court to by testimony present- proven by Plaintiffs replace adjective Defendants to “devo- deposi- ed to included in the this Court and “inspiration,” tional” with the noun cause; above-styled tions filed in the admitting any without manner that De- (c) object To distribution of Gideon comply any fendants have failed to Con- Bibles and Youth Testaments requirements, stitutional Defendants state to Florida; County, Orange schools of regular this Honorable Court that at a meet- (d) challenge constitutionality To ing Friday, held on March Defend- Chapter 231.09(2) of the Florida Statutes. officially ant wording Board amended the 3. Plaintiffs’ counsel stated to this has opening changing exercises that the correction Resolution of adjective “inspi- “devotional” to the noun Instruction, the Defendant Board adopted August 24, Public ration.” accepta- would be TRAVERSE TO DEFENDANTS’ place ble to of a court order Plaintiffs in STATEMENT COMPLIANCE OF objectionable striking portions down the Plaintiffs, by Come now the their Defendant Board of Public under- Resolution of such signed attorneys, County Orange and file this traverse Instruction of was amended rary restraining viola- order to which had been no evidence

there Board stipulated or in the had morning conforming. exercises was tions in Meltzer since its December 4 v. Board of Public of Bibles Instruction of Orange distribution stated, Therefore, Cir., 1973, the at- County, the Court order. F.2d 552. On the three-judge issue, the statute must await the conven- tack on court the court held that court, three-judge which it said it there ing of a was no evidence that the statute had request. would been applied, or would be and thus there showing had been no of irreparable injury 24, 1972, is- the District Court May On necessary injunction. to obtain an Finally, apparently The Court a third order. sued the court remanded to the District Court convening a three- mind about changed its for a determination of whether the likeli- court, dispose and decided judge hood that the statute would be enforced principles discussing the itself. After issues was so miniscule to present no case or Harris,9 Court decided Younger v. controversy, robbing thus the District Court case. apply in this Younger did jurisdiction grant even a declaratory was no However, held that there the Court judgment, or whether there was still a case would be en- the statute likelihood controversy present though even case or forced, therefore there was no danger of harm great was not and immi- constitu- remaining as to the controversy nent enough to injunction. warrant an The Court further tionality of the statute. of mis- voluntary cessation stated The Trial Court —Round II by the Board after the suit conduct plaintiffs any right deprived filed On December the District morning exercis- declaratory relief as to the Court held a hearing following remand. At issues. es or Bible distribution this hearing, the Board moved for dismissal on the grounds that there was no case or plaintiffs appealed to the Fifth Cir- controversy presented by the facts. The May cuit from the 24 order judgment. Court postponed ruling on the motion until evidence, close of the which consisted of The Court Of Appeals I —Round following. The first witness was one of plaintiffs, who 5,1973, established continuing On June the Fifth Circuit decided standing. The second deficient, witness was record was and so re- defend lawyer, ant’s attempted who manded the case to the District Court to introduce into record, legal evidence his 1970 update findings opinion make basing of fact on the legality of morning August the nature of the exercises and the resolution on extent of the “Christian system’s participation virtue” statute. Although Bibles, opinion in the distribution of Gideon and to was marked as an exhibit for clarify identification, the exact nature of the District objection to its admission into Court’s December 4 order evidence denying tempo- was sustained.10 requirements any appeal to conform to the constitutional tion of whether or not would be always depend- taken in this set forth this Court in its Order cause has dated been scope ent of the order of December and if further this Court violation representations contrary and no practices have the unconstitutional followed by Plaintiffs, counsel, been made or their the Defendant Board of Public Instruction Court, this or to Defendants herein. opening year since the of the current school enjoined Court, of 1970 would be this Harris, Younger 91 S.Ct. 9. specifically alleged Complaint more in the 746, 27 L.Ed.2d 669. proven by filed herein and the evidence be- Court, fore this then and in that event there Apparently, the Court refused to let the doc- necessity appeal portion would be no that ground any- ument into evidence on the that Complaint pertains thing prior of the to sectarian dated the date of the Fifth being public opinion, pur- followed schools Circuit was inadmissible for the Orange County, pose determining The Florida. determina- whether or not a case or a school witness was board not know The third whether there' had'been that, member, although the readings who testified of the over public bible address changed to “in- “devotional” had been system word morning opening ex- in the actual con- change spirational”, no ercise. He also testified that he did not tell was ordered. morning exercise duct the principals what could not be done under that at a recent also testified This witness order, the Court’s only but what could be Camp again had meeting, the Gideon Board done compliance and still be in with the to distrib- requested permission the Board’s policy. Finally, he testified that most of request in the schools. This Bibles ute the schools nativity used Christmas scenes vote. The by a four to three sole tabled around the school at Christmas. request tabling was to wait reason The next high witness was a prin- new of defendant’s legal opinion cipal. He testified that it was the current counsel, counsel had in- and defendant’s past practice his school to have stu- it wished to wait for formed Board that dents “inspirational” read selections—usual- litigation conclusion of the current be- ly from Bible, both Old and New Testa- issuing opinion.11 witness went fore public ment—over the system address each testify the motion would on be morning. selections, testified, he re-opened for as soon as consideration normally by students, selected and read of- litigation and the reached its conclusion de- ten by the student council chaplain. He attorney gave legal opin- them a fendant’s testified that he had the ultimate authority ion. to approve disapprove the selections cho- the Deputy Super- The next witness was sen, but very rarely he exercised his He intendent of Schools. testified that power. veto that, He further testified al- survey had been no taken of morning there though he opportunity allowed an for silent September survey, exercises since the prayer, by asking the students over the that the Court’s December order had but system address to observe period principals. distributed to all He been also for silent after the meditation Bible read- principals that he testified had advised ing, he prayer. did not oral allow they comply were with “to The next was a theologian. witness He the present that was in existence at time testified that virtue Christian is not the concerning opening exercises and that equivalent general. virtue All period there should be a meditation in Chris- virtue, testified, tian system provide dependent the school that would he faith, opportunity prayer for individual or Bible and Christian virtue cannot taught be inspiration properly meditation.” teaching without underlying however, testified, faith, He further that he did faith. He hope, listed charity, pru- controversy this, at the time of existed whether it can be said assurance 4, 1973, hearing. It is of expectation December course true there is no reasonable controversy wrong repeated. that whether or not a case or will ex- See note infra. Thus, ists is to be determined as of the time of the it was error for the Court to refuse to hearing, court’s rather than the time of the allow this document into evidence on the ground action. that it commencement Golden v. related events which occurred Zwickler, 1969, prior might to 1973. The document have had However, bearing equally some on the issue of L.Ed.2d true that whether or not voluntary danger there was of recurrence mere cessation of misconduct when of the Board’s violations, any. necessarily if suit is filed does not render case necessary justiciability. or moot remove the See, 1974, g., Odegaard, Thus, despite “guidelines” e. DeFunis v. 416 U.S. the “advice” or 312, 1704, 164; 4, 94 S.Ct. L.Ed.2d 40 United issued in its December 1970 Co., 1953, 629, order, v. W. T. States Grant 345 U.S. defendant’s counsel —and the Board— 894, test, apparently legality S.Ct. 97 The 73 L.Ed. 1303. crucial felt that the of further Bible involving request injunctive settled, an action or and distribution was not but relief, declaratory depended where defendant has volun- instead on the outcome of the cur tarily illegal conduct, allegedly litigation. ceased his rent

567 dence, justice temperance, fortitude plying that abstention might be appropriate seven classic Christian virtues. in this ease. The court cited Steffel12 proposition there must genu- be a rabbi, The final witness was a who basi- ine threat of enforcement before a declara- cally previous theologian’s confirmed the tory judgment will issue. Finally, testimony. Court failed to clarify or-even to discuss the 22, 1975, the January On district Court legal effect of 4,1970 its December order as gist entered its final order. The of this instructed the Fifth Circuit. declaratory judgment order was that no injunction would issue because there was no Injunctive Relief imminent threat- or likelihood of further argue Defendants morning violation of exercise Bible that por tion of the District readings prayers and no Court’s opinion imminent denying injunctive relief threat or likelihood of based on further violation of the case of United States v. Co., W. T. Grant against the order distribution. As to 1953, 345 629, statute, 894, the Christian virtue the Court 73 held S.Ct. 97 1303, L.Ed. which the irreparable Supreme there was no foreseeable Court set forth gov injunction erning no injury, principles so that could issue. for determining whether a Furthermore, request the Court for injunctive found that there relief has been moot ed was no threat of enforcement of the statute the voluntary cessation of allegedly 3 to create the case controversy illegal sufficient conduct by the defendant.1 Under necessary declaratory judgment for a standard, defendant argues, we must The issue. Court also decided that uphold stat- the District Court’s injunc denial of subject interpretations, ute is to varied relief, im- tive since the evidence does not show 1974, 452, Thompson, 12. Steffel v. 415 U.S. repeated.” heavy The burden is a one. Here 1209, S.Ct. 39 L.Ed.2d 505. the defendants told the court the inter- longer locks no existed and disclaimed in- agree proposi- “Both sides to the abstract tention profession to revive them. Such a does voluntary allegedly illegal tion that cessation of although suffice to make a case moot it is deprive power conduct does not the tribunal of one of the factors to be considered in case, e„ determin- to hear and determine the i. does not ing appropriateness granting injunc- make the case moot. United States Trans- Assn., 290, against Freight tion Missouri 166 U.S. S.Ct. now-discontinued acts. (1897); Walling Along L.Ed. v. Helme- power [41 1007] with its to hear the Inc., 37, Payne, rich & 323 U.S. 65 S.Ct. 11 [89 power grant injunctive court’s relief survives (1944); Bowles, L.Ed. Hecht Co. v. 29] illegal discontinuance of the conduct. Hecht 321, (1944). 64 S.Ct. 587 L.Ed. A [88 754] Bowles, Co. v. 321 U.S. 64 S.Ct. [88 controversy may remain to be settled in such supra; L.Ed. Mfg. 754] Goshen Co. v. Hubert circumstances, United States v. Aluminum Co. Myers Co., Mfg. A. 37 S.Ct. 105 America, (1945, C.A.2d), 148 F.2d e. (1916). purpose L.Ed. [61 248] of an in g., dispute legality challenged over the junction prevent violations, is to future Swift & practices. Walling Payne, v. Helmerich & Inc. States, 311, 326, Co. v. United (U.S.) supra; United Brotherhood J. C. & v. N. 311, 314, (1928) and, [72 L.Ed. 597] L. R. B. 341 U.S. 71 S.Ct. 966 [95 course, it can be utilized even (1951). without a show L.Ed. The defendant is 1316] ing past This, wrongs. ways. moving party together free to return to his old But the having legality satisfy with a interest in must the court that relief is needed. settled, against necessary militates a moot- determination is that there ex ness conclusion. United States v. Trans-Mis- cognizable danger ists some of recurrent viola Assn., Freight supra, sóuri at [166 U.S.] tion, something possibility more than the mere [540], say [17 For to 547]. keep which serves the case alive. The chan that the case has become moot means that the cellor’s decision is based on all the circum defendant is entitled to a dismissal as a matter stances; necessarily his discretion is broad and right, Corp., N. L. R. B. v. General Motors strong showing of abuse must be made to (1950, C.A.2d). 179 F.2d 221 The courts have reverse it. To be considered are the bona fides rightly grant pow- refused to defendants such a expressed comply, intent to the effective weapon against public erful law enforcement. and, cases, ness of the discontinuance in some The case nevertheless be moot if the past the character of the violations.” defendant can demonstrate that “there is no 632-33, 345 U.S. at 73 S.Ct. at 897. expectation wrong reasonable that the will be 568 See (2d McClintock on Equity the wide 146 abused ed. § District

that Hunter, United 1948).” States Cir., v. the Grant stan- 4 it under afforded discretion 1972, 205, 459 F.2d 219. contention of reach this not We need dard. however, that of the defendant’s, for Declaratory Relief which deals with opinion Court’s District the de- clearly matter, relief shows injunctive This does not end the how predicated ever, not relief was injunctive appellants have asked for both nial of mootness, upon but declaratory injunctive ground relief. Under circumstances, “duty no imminent threat of these we have the to “there is ground “stringent ju- appropriateness decide the so that and the merits violation” future declaratory re- of the injunctive request irrespective relief is not of its remedy dicial propriety conclusion as to the of the is quired.” Zwickler v. injunction.”14 suance of the agree with the District Court Koota, 1967, We 241, 254, of harm from the re imminency Super also Tire See 19 L.Ed.2d 444. McCorkle, complained of is Engineering Co. v. currence the issuance of 1; to warrant sufficient Steffel 94 40 L.Ed.2d S.Ct. reaching this conclu Thompson, 452, 468-69, relief. injunctive 415 94 prin Wade, sion, guided by 505; the established Roe v. we are S.Ct. 39 L.Ed.2d considering whether that “in ciple equity 93 S.Ct. court should injunctive relief a grant L.Ed.2d 147. This is because “different no restriction upon a defendant impose considerations enter into a federal court’s plain necessary protect relief, greater declaratory than decision as to on the one hand, injury complains. injunctive relief, of which he from the on the other.”15 tiff the defendant injunctive volved troversy where on lief. or F.2d 182 at 190. able.” Court discussed opposed lenged. a state such a sive Familias Unidas v. less intrusive effect 697] Brennan, J.): U.S. [82] In Steffel v. extinguishes “As was ment plaintiff though tional in toto—that unconstitutional constitutional declared broad—that tionally applied state statute “While conduct and foreclose the Only laws: ‘Of it is a state statute which manner as to cure the necessity 27 L.Ed.2d First, declaratory judgment be course, may granting relief, when such granting said to be no a defendant observed in Perez unconstitutionally vague a 124-126, may have no effect whatsoever nevertheless be valuable Thompson, the different considerations is, incapable may be declared unconstitu- applications; or it rights favorable a Briscoe, an declaratory judgment re- same unilateral action unilateral action resolves declaratory judgment on the administration of statute injunction,,particularly cannot make even [91 is, incapable may unilaterally longer (separate can supra, full extent of its declaratory judg- the case or con- allegedly offen- live disappear. A Cir., 1976, being Ledesma, necessity for ^[674] being opinion will have Supreme constitu- or over- may at 696- justici- having to the act chal- in- by purport. this tion of ion of the federal court that the statute particular applications implication is that this Court will overturn the state courts it will not be the declaration does not injunction constitutional prosecutions under the cannot be statute. stitutionality ready court of a State has give rowing vague failed to do declares give the a state decision, yield defendant’s conduct is not protected statute if he the deterrent effect of Even where a declaration of unconstitu- tionality declaration total Court, if a statute to reverse the statute is unconstitutionality prosecutor, unconstitutionality is not reviewed constitutionally overbroad, may If a declaration of statute In either the statute would. fully it follows that this Court stands clarifying bring prosecution so, is affirmed reasonably regulating expression applications. Accordingly, that the state courts enforced. If a declaration and later a federal court still be able Thus, after the federal court narrowly construction it had construction but has conviction under the an, statute, where the unconstitutionally a federal declara- by this an believes valid conviction. reflects the unconstitutional necessarily well be constitutionally is affirmed opportunity partial construed to cut down incapable statute, as a broad Court, Court, under the so as to that- highest open uncon- a nar- opin- may bar but

569 operative Article III and is Wade, 166, only in supra, 410 U.S. respect at 93 Roe v. to controversies which are such the con at 733. S.Ct. sense, stitutional the word “actual” being declaratory Court found that The District one of emphasis rather than definition. there was be issued because relief could not See, g., e. Aetna Life Co. Insurance v. Ha disagree. We controversy.16 no case or worth, 1937, 227, 300 461, 57 S.Ct. 81 denied, reh. 617, 687, L.Ed. 300 U.S. 57 S.Ct. Judgment Declaratory Act’s 667, Thus, 81 L.Ed. 889. can there be no “cases of controversy” limitation to actual controversy case or parties where seek ad regard provision has judication constitutional only political question,17 a or persuasive Huffman, force of the See state statute. Great Lakes Co. v. 319 U.S. may opinion judgment 293, lead court’s (1943) 63 S.Ct. 1070 L.Ed. [87 1407] courts, legislators prosecutors, state (federal against interfering with the responsibilities respective their reconsider 20 laws); enforcement of state tax Samuels v. policies statute. toward the Enforcement 20 Huffman, employ- In Great Lakes Co. v. may changed, judicial be or construction or sought ers a declaration that a state unem- may repeal legislature the statute and ployment compensation imposing scheme Finally, judg- court start anew. federal tax them was ap- unconstitutional as judicata effect, may have some res ment though plied. Although relying precise not on the point difficulty not this free 41(1) terms of 28 U.S.C. § governing [28 U.S.C.S. rules to be devel- and the oped remain 41(1)], (1940 ed.), workings 1341, proper § now a view to the 28 U.S.C. § clear, however, system. 1341], a federal What is [28 § U.S.C.S. which ousts district declaratory though judgment jurisdiction is that even ‘enjoin, suspend courts of or judg- force and effect a final has “the ment,” assessment, levy restrain the or collection of 2201], 2201 USCS § 28 U.S.C. § [28 any tax under plain, State law where a milder form of relief than an it is a much injunction. Though speedy may remedy and efficient be had in may persuasive, be it State,’ Court, recog- courts such coercive; ultimately noncompli- it is not nizing unique anticipatory effects of ad- inappropriate, but is ance with judication administration, on tax held that (Footnote omitted.)” contempt.’ not declaratory relief should be withheld when Id., 469-71, 94 1221. 415 U.S. S.Ct. taxpayer provided opportunity an Second, engrafting payment maintain a refund suit after Judgment Declaratory “upon Act a re- disputed contrast, ‘In tax. there is no statu- equitable quirement all of the traditional tory counterpart of 28 U.S.C. 1341 § [28 injunction prerequisites to the of an issuance applicable U.S.C.S. § 1341] to intervention in before the issuance declara- be satisfied prosecutions.’ state criminal Perez v. Ledes- defy tory judgment is considered would Con- ma, 674, 401 U.S. 91 S.Ct. 699 declaratory gress’ [27 intent make relief avail- (1971) (separate opinion L.Ed.2d 701] injunction able in cases where an would be Brennan, J.).” inappropriate. plaintiff ‘Were law to be that could Mackell, 66, 764 401 91 L.Ed.2d [27 S.Ct. declaratory judgment that a not obtain (1971). 688] was unconstitutional when local ordinance Id., 472, prosecution pending at no unless he 415 U.S. 94 at state S.Ct. allege prove justi- could circumstances opinion implies ap- 16. The Court’s District injunction existing fying of an a federal pellants present hypothetical an abstract or Declaratory prosecution, state the Federal question, practices complained because Judgment pro been Act would have tanto occurring present are not at and the statute Corcoran, 826, Wu/p repealed.’ 454 F.2d v. complained being currently isof enforced. J.). (C.A.l, 1972) (Coffin, 832 theory by The District Court bolsters its con- Ledesma, 116, U.S. at See Perez S.Ct., [91 cluding that there is no likelihood of future (separate at 27 L.Ed.2d 692-693] Brennan, occurrence of these J.).” or of the enforce- opinion of 471, ment of this statute. at at 1222. 415 U.S. Thus, emphasized, Court in Steffel as the Schlesinger Stop v. Reservist Committee to only “The occasions where Court has 1974, War, 208, 418 U.S. disregarded 94 S.Ct. these ‘different considerations’ 706; Gilligan injunctive Morgan, preclusion L.Ed.2d and found that a 413 U.S. inevitably declaratory 407; relief led to a denial of 93 S.Ct. 37 L.Ed.2d Powell v. principles McCormack, 1969, been cases in relief have 89 S.Ct. altogether against 491; feder federalism militated Cohen, 1968, 23 L.Ed.2d Flast v. adjudications. al intervention a class of 20 L.Ed.2d 947. legal interests, or where advisory opinion,18 verse of sufficient immedia- merely seek abstract, merely an presents reality to litigation cy warrant issuance of a question,19 hypothetical declaratory judgment.”22 Id. academic adjudicat- sought to be question where at 512. S.Ct. develop- by subsequent mooted ed been has Thompson, supra, In Steffel v. Su- no plaintiff has ments,20 or where applied preme Court discussed23 and the action.21 standing to maintain controversy aspects case Declara- Pacific Coal Casualty v. Co. Maryland tory Judgment in criminal setting. Act 510, 270, 1941, 61 Co., 312 S.Ct. U.S. & Oil there pointed Court out there empha- 826, Supreme Court 85 L.Ed. stages to controversy were two the case or ab- an between the difference sized inquiry. The first whether the appel- “controversy” contem- a question and stract allegations specula- “imaginary lant’s necessarily 2201 is plated by § 28 U.S.C.A. are, or whether on the they contrary, tive” difficulty of Faced with the degree. one of real and substantial.24 determining fashioning precise a test difficulty We have no in controversy deciding, in a is such a whether there us, the case before the claims in raised substantially particular Court appellants imaginary, here essentially by spec are not by using an problem avoided the chimerical, ulative, ingenious mere question each case is or a aca “The test: circular exercise in alleged, Appel under demic the conceivable. the facts whether circumstances, (i) show that there is substan- lants have demonstrated extensive having ad- controversy, parties place between Bible distribution has taken tial 1974, 24, Ramirez, 1975, Newkirk, 395, 94 v. 418 U.S. 18. Richardson 22. In Preiser v. 422 U.S. 2655, 551; Morgan, Gilligan 402, 2330, 272, v. 2334, 278, 41 L.Ed.2d S.Ct. supra; 95 S.Ct. 45 L.Ed.2d Tatum, 1, 1972, 92 v. 408 U.S. Laird Court, test, Supreme applying this em- denied, 154, 2318, reh. 409 33 L.Ed.2d S.Ct. phasized that last clause of test —“of 165; 94, 901, v. 34 Golden 93 S.Ct. L.Ed.2d U.S. Zwickler, 1969, immediacy reality sufficient to warrant the 956, 103, 22 394 U.S. 89 S.Ct. declaratory judgment”. issuance of a —was Cohen, 113; supra; United Flast v. L.Ed.2d crux of the test. 75, Mitchell, 1947, 330 U.S. Workers v. Public 556, 754; 91 L.Ed. Federal Radio Com 67 S.Ct. 15, supra, 23. See the discussion note where 1930, Company, 281 mission v. General Electric the Court in Steffel discussed the different con- 389, 464, 74 L.Ed. 969. U.S. 50 S.Ct. applying declaratory siderations when relief is sought injunctive rather than relief. 244, 1971, Rice, U.S. 19. North v. 404 Carolina 402, (abstract ques- 30 L.Ed.2d 413 92 S.Ct. 1973, Scrap, In United 412 States v. U.S. Mitchell, supra tion); United Public Workers v. 669, 688-89, 2405, 2416, 93 S.Ct. 37 L.Ed.2d Summers, 1945, (abstract question); 325 In re 254, emphasized “pleadings the Court 1307, (abstract 561, 1795 65 S.Ct. 89 L.Ed. ingenious something must be more than 807, law), 66 reh. denied 326 U.S. declaration plain- exercise A academic in the conceivable. 491; 94, Life Insurance L.Ed. Aetna 90 S.Ct. allege will in tiff must that he has been or fact Haworth, Company supra. v. perceptibly challenged agen- harmed action, cy imagine not that can he circumstanc- 312, 1974, Odegaard, v. 416 U.S. 94 20. DeFunis agen- in which he es could be affected 1704, 164; Morgan, Gilligan 40 L.Ed.2d v. S.Ct. supra; cy’s action.” Wade, supra; v. v. North Carolina Roe Rice, Cohen, supra; supra; v. Newkirk, Flast v. Liner supra, v. In Preiser the Court em- Inc., 1964, Jafco, 11 84 S.Ct. phasized Maryland that the crux of the Casual- 347; Company Aetna Life v. L.Ed.2d Insurance ty phrase, was the test “of sufficient immedia- Haworth, supra. reality cy and issuance warrant declaratory judgment.” Stop Schlesinger v. Reservist Committee Ullman, 1961, In Poe v. 367 U.S. Ramirez, War, supra; supra; Richardson v. the Gilligan Morgan, supra; question S.Ct. L.Ed.2d Data v. Association of phrased appel- in terms of whether or not the Processing Organizations, Service Inc. lant’s claim raised which were issues “chimeri- Camp, cal.” 184; Cohen, 1968, L.Ed.2d Flast 20 L.Ed.2d 947. (ii) to Casualty there is a motion fairly past; recent the Supreme Court in Preiser, tabled, but distribution such Bible resume only underscores two-step nature of the agenda, school board’s breathing, on the inquiry. pronouncement by waiting only for Supreme Court’s recent decision in any pronouncement); (or a lack Super Tire Co. Engineering v. McCorkle, (iii) compulsory of a near morning prayer supra, gives guidance some as to how imme- over (since prayer was made nature diate and real controversy must be to audience”) “captive contin- loudspeaker to a justify declaratory relief.27 In that case this suit was filed and ued until the time Jersey New engaged workers in an econom- sys- over address eligible public ic strike were for assistance in some place tem still takes through state programs. welfare Employ- area; (iv) morning exer- schools in the plants ers whose sought were struck cise devotional and Bible distribution injunction against the Jersey New welfare adopted by board initially were the school administrators practice have this on the express at least in in reliance and, stopped, addition, in sought a declara- statute; (v) and stat- “Christian virtue” Jersey tion that New interpretative discretionary mandatory, ute is not but is regulations according benefits to striking teachers affirmatively since it directs the workers, were void. Christian principals every and to inculcate Because the strike which instigated the then, step of the virtue.25 the first Clearly, ended, lawsuit had the Court had no diffi Maryland Casualty in and test as laid down culty finding in that injunctive relief should who parties Steffel is satisfied. These are denied, be since the case was mooted for real and legal engaged in a adversaries purpose injunctive of granting controversy controversy substantial relief. —a Recognizing duty imposed by in imaginary speculative is not Zwickler Koota, v. supra, requests to examine sense of the word. declaratory relief under different stan inquiry, stage of the The second dards, however, the Court determined that Steffel, whether emphasized in the Court the request for declaratory relief was em “continuing or not existence there is a living bodied case or controversy for Id., . .” controversy . . live and acute purposes Declaratory Judgment For, as a 459, 415 94 S.Ct. at 1216. U.S. at Act. recog- cases have variety Supreme Court conclusion, reaching nized,26 be ex- controversy ap- must an actual plied review, merely Maryland Casualty at test not and stages tant at all found empha- that “the facts complaint provide is filed. The here full time the and com- plete requirement “of sufficient imme- satisfaction of the given phrase sis Ill, 2, diacy to warrant the issuance Constitution’s Art. and reality the Declara- § Maryland Act, Judgment declaratory judgment,” tory that a case or contro- 13, (see supra), has not 27. In th'e true that the statute Grant case note 25. It is of course question by disciplinary request recently where the meas- was whether a been enforced injunctive potential relief had been mooted the volun- ures. But does not remove the that tary illegal allegedly cessation of mandatory wording conduct effect or remove the of its defendant, emphasized heavy the Court that a possibility disciplinary for non- measures burden future, defendant demonstrate compliance give particularly if we expectation that “there is no reasonable that implicit by failing our sanction to the statute wrong repeated.” will be See also DeFun- interpret it. is, supra, (voluntary allegedly cessation ille- gal only conduct would not render a case moot See, Newkirk, g., supra; v. Roe v. e. Preiser if it could be said with assurance that there is Wade, supra; v. Medical for Hu SEC Comm. expectation wrong no reasonable will Rights, 404 U.S. man 30 repeated). Although test the Grant is not 560; Zwickler, supra; L.Ed.2d Unit Golden directly point declaratory where relief is Inc., 1950, Munsingwear, ed States v. 340 U.S. (see sought supra), note it does furnish 36, 71 95 L.Ed. S.Ct. guidance some in this area. “captive to a audience.” parties. Unlike The extent of this between versy exist unknown, Un in Oil Workers reading is because the prevailed Board has situations Missouri, S.Ct. survey conducted another since its ini- ions v. which the Court (1960), survey immediately on tial before L.Ed.2d 373 —conducted relied, chiefly majority instigation litigation of this Appeals’ —indicated 803, 75 Battle, S.Ct. that nearly all of the area schools Harris conducted govern challenged (1954), the morning unison, prayer L.Ed. 634 devotionals with case is not present activity in reading, and Bible distribution.28 Fi- mental disap evaporated has not contingent, nally, testimony the presiding officer brooding and, continuing by its peared, princi- of the school board and of one of the may well be a substan what casts presence, pals only policy involved indicated the interests of effect tial adverse change change made the board was to parties." petitioning “inspirational.” one word—“devotional” to supplied]. [Emphasis at 1698. As to the issue of the “Christian conclude, the circumstances- from all We statute, emphasized, virtue” it should be the real and substantial of this first, the initial Board as to parties is of suf- these controversy between prayer Bible distribution and reality to warrant immediacy and ficient adopted pursuant to this statute. This declaratory judgment, as of a issuance effect, in only is still with one tempered given is latter phrase change word “devotional” has been —the brooding “continuing and meaning by the changed Furthermore, “inspirational.” to Supreme Court language of presence” emphasized it should be the statute is v. Company Engineering Tire Super in mandatory imposes duty an affirmative —it only McCorkle, The school board supra. on board and on area teachers and permit a motion to barely tabled recently principals. Although recently no one has by the of Bibles Gide- distribution renewed disciplined non-compliance been Apparently, only reason Camp. on statute, possibility of enforcement pass is that four of did not motion However, always question exists. in enough were cautious to members Board here is whether or this issue not not statute the advice of they act until received wait to places duty upon an unconstitutional teach turn, was lawyer, Their lawyer. their ers, members, principals and school board any concrete ad- enough to refuse cautious infringes upon whether but First litigation. of this until the termination vice rights Amendment of school children. In suffice, either, argue to that the will not It context, this the lack of current enforce most in the District Court’s strong dictum disciplinary proceedings against ment via prevent will Bible distribu- opinion recent non-complying largely teachers is irrele future this School Board. tion in the (and policy), by vant. This statute Board strong issued same The District Court mandatory wording, its necessarily must litigation, in beginning of this dictum at encouraging have the effect those teach case, but that did order in this very first already predisposed, inject ers who are so considering, the Board from prevent particular religious their beliefs into the a resolution which nearly passing, may It have the further classroom. effect renewed Bible distribu- have allowed would neutral, encouraging those who are tion. statute, opposed only weakly either issue, prayer comply by bringing religion into the reading Bible As to the unison, acquiesce in other longer prayer but classroom or to teachers’ is no there today doing over the loud- so. we are worried about still Bible Since there is schools, of the statute on the chil- some of the area effect speaker in at least Furthermore, presiding regard, considering officer of the the area in this his schools Board, testimony, responsibilities. a re- in his demonstrated function and knowledge of the markable lack of dren, teachers, rather we refuse gainsaid, than on ment of cannot be and the reasoning Court’s accept the District recognition State’s of the pervading reli- that, recently has not been since the statute gious ceremony character of the is evident enforced, controversy no case or there is specific permission from the rule’s of the a declaration on its con- to issue sufficient alternative use of the Douay Catholic ver- stitutionality. sion as well as the per- recent amendment mitting at nonattendance the exercises. circumstances, Under these we conclude None of these factors is consistent with the immediacy there is sufficient and reali- contention that the Bible here used either ty controversy the is- warrant as an non-religious instrument moral declaratory judgment, under suance inspiration or as a reference for the teach- Casualty/Steffel test, Maryland as read ing subjects.” secular at U.S. light brooding “continuous 223-24, 83 S.Ct. at 1572. Super Engineer- presence” language Tire McCorkle, ing Company supra.29 v. rejected Court also the defense that individual students allowed were to absent

The Merits themselves from upon paren- the exercises tal request, “for that fact furnishes no de- Reading Prayer And In Unison fense ato claim of unconstitutionality un- Abington Township School District der the Establishment Clause. Engel See Schempp, 83 S.Ct. Vitale, 1962, [421], Supreme 10 L.Ed.2d 1266-1267, [1261], at 8 L.Ed.2d 601.” Final- required that a statute30 held state ly, rejected the Court the defense that “the religious consist exercises schools religious practices here be relatively comment, at ing reading, without minor encroachments First Amend- opening day, each school verses ment.” “The breach neutrality Holy Bible and the recitation of the today trickling may a stream all too soon unison, Prayer the students by Lord’s a raging become . torrent . .” was as a violation of the unconstitutional 225, 374 83 S.Ct. at 1573. Clause, Establishment First Amendment’s case, In this the school board passed a applied through to the states the Four calling resolution to a five seven minute rejected teenth Amendment. The court the morning every exercise in school to of the defendant school that consist defense board period “a morning of meditation pur the devotional had secular which shall in- clude promotion opportunity such poses, prayer as “the of moral val for individual ues, reading and Bible the contradiction to the or a materialistic devotional or medi- times, perpetuation tation presented by trends our our or groups organizations teaching or an individual” by institutions literature. to be followed a patri- if purpose strictly religious, is not otic exercise. A survey by conducted [Even] sought accomplished through it to be school board indicated that 70 of the 97 comment, readings from Bible. County without in Orange practicing schools were Surely place of the Bible as instru- daily reading, Bible generally read aloud to Briscoe, supra, 40, 515, 29. See also Familias Unidas v. tion No. 300 U.S. 57 S.Ct. 81 at 189: (1937). tendency 789 L.Ed. is a There declaratory judgment declaratory judgment cases construe the “The action has en- narrowly. larged by mootness doctrine more Porter v. that cases be entertained courts, Lee, provided per- 328 there is 66 S.Ct. 99 L.Ed. sufficient (1946); sonal Lehigh stake and adversariness. Powell v. 1199 Coal & Nav. Co. v. Cen McCormack, F.Supp. (E.D. Jersey, tral R. of 362 New (1969); 1940).” L.Ed.2d 491 Haworth, supra. Aetna Life Ins. Co. v. Pa. It has been stated that holding Included within were the Court’s public courts consider some extent adopted pursuant rules a school board give interest in the decision to withhold statutory authority. Virginian Ry. System relief. Co. Federa- teach- suant the classroom resolution. Specifically, a student we a class schools, the Bible read- find that daily is the public reading In er. some public-address students in “captive the school a given over audience” situation ing was schools, Prayer public the Lord’s over the system address each system. In some morn County’s ing, which is Only four of violative of recited. the First and Bible read- prayer hor Fourteenth Amendments.32 had neither schools under fall both Clearly, these ing. Abington. case rationale

the rule and Bible Distribution the First Amend- under as unconstitutional The leading case to consider the issue of through the ment, the states applied constitutionality of Bible distribution to Amendment. Fourteenth public school children is Tudor v. Board of 4, 1973, re- hearing on theAt December Education, 1953, 14 31, 100 N.J. A.2d the District mand, evidence before denied, A.L.R.2d cert. board the school indicated Court 99 L.Ed. 644. In that word in its resolution changed only one Jersey Supreme New Court held that word “devo- suit was filed —the since this distribution of Gideon Bibles to children in “inspirational.”31 changed to tional” was public schools was unconstitutional as show Furthermore, member testi- a school board ing preference of one over anoth the actual conduct of change no fied that authorities, byer the school where the Gide was ordered. The morning exercise Bible, following King James version testified Deputy Superintendent Schools principally and confined to the New Testa that, December at the time of the ment, acceptable was not to Jews and Cath “a hearing, providing peri- the schools were olics, though even given Bibles were system in the school od of meditation only to parents signed children whose opportunity for individu- provide would therefor, request slip since this is more than inspiration prayer or Bible al of, to, mere accommodation or assistance Finally, high and meditation.” result, religious reaching sect.33 it was the current principal testified found, upon testimony psychol past practice of his school to have stu- ogists, pressures would be exerted “inspirational” read selections dents upon non-conforming pupils, creating thus system address the Bible over preference, an unconstitutional and rea normally morning. each The selections parents soned that pupils deemed the students, often selected and read system board’s use of the school as a means chaplain. student council placing stamp of as ap distribution its of proval upon that these minor the Gideon version of the Bible. We are convinced Thus, rejected prac argument and Court changes in the school board proposed infirmi not cure the constitutional method of distribution no tice do way injected the initial the “free ties that we have found as to issue of exer pur ordered cise” of because no one was forced board resolution and ' wording, change the amended 31. With the and violative of the First Fourteenth Amend- require period of would read to “a resolution Abington. ments under opportunity shall include the meditation which prayer Bible or an for individual of the violation of 33. “The full force both the presented by groups inspirational or meditation is revealed State and Federal Constitutions organizations . or an individual might happen perceive what if a sin- when we [Emphasis supplied], gle besieged by sepa- three school board were applications for the distribution of Bi- rate prayer is now out 32. The issue of oral of here, from Protestants as another bles.—-one picture, that no since the evidence indicates from Catholics the distribution prayer or conducted in the oral is allowed Bible, Douay Jews for the and a third from However, emphasize we that oral schools. Id., privilege same Bible.” 100 A.2d at for their prayer type conducted when school 866, 45 A.L.R.2d at 739. adopted would be board resolution was first religious world, Testament and no to take New Protestant were distributed brought instrument was through exercise or system the school to the exclu- sion of groups, classrooms. the other considerable le- gal action justifiably Id., would ensue.” Orange County In Brown Board of at 185. Instruction, 1960, Fla.App., 128 So.2d Public complaint held that a stated Court Our has only research disclosed one feder- alleged action which a cause of al case which has addressed the Bible distri- Bibles in distribution Gideon bution issue. In Goodwin v. Cross County schools, officials, by E.D.Ark., authorized District, school School 394 F.Supp. First and Fourteenth Amend- violated the among others, District Court held rights of school children and their “practice ment ... approved conclusion, reaching parents. In this by the permitted School Board and by observed: Court school of distributing authorities the Gideon Bible a representative of the Society to “The of Gideon Bibles distribution grade fifth students in the elementary system each through year the school cer- schools of the Cross County School District tainly approximates promotion annual is an exercise religious character which is religious endorsement sects or prohibited by the First Amendment to the groups teachings which follow its Constitution applicable as made precepts. This distribution likewise States the Fourteenth Amendment.” rights plain- to impair would tend Id., at 428. In reaching conclusion, the their tiffs and children to be free from placed primary emphasis34 upon Tu- governmental action which discriminates dor and its “public conclusion that religious in the free exercise of belief. machinery school bring is used about the Jf distribution of these Bibles to the children. Gideons, “If the instead of distributing . eyes the pupils and their King James had distributed the parents the placed board education has Douay exclusively, Koran, version or the stamp of approval upon this distribution Bible, Talmud, the Moslem and, fact, upon the Gideon Bible itself body law, of Jewish civil and canonical . This is more than mere ‘accommo- through the system of an area dation’ religion permitted in the Zorach whose inhabitants were strongly Protes- Clauson, case [Zorach tant, we surmise that the Protestant (1952)]. 96 L.Ed. 954 The school’s groups would feel sectarian resentment part in this distribution an active one against the actions of the school authori- cannot be sustained on the basis a mere ties.” assistance religion.” citing question “This could be narrowed sug- Tudor, supra. gesting if the doctrinaire books of Methodist, Baptist, Presbyteri- either the In the us, case before the Gideons have an, or other of the numerous divisions of already distributed thousands Bibles to emphasized Court also the fact that Gideons to win others the Lord that, stipulated by parties pre- the in the Christ, Jesus and an effective means to this ceremony, representative the sentation Gideon end has been the wide distribution of explained places the students to where the spread Word of God. The to Gideons seek Society partial Gideon distributed Bibles and Bible, God, encourage Word of This, Society. the activities of the Gideon widely possible. use its as as has Lord obviously purpose Court said “identifies the of opened placement for of doors His Word Id, Society.” the Gideon at 427-28. The among many strategic groups popula- of quote then went on Court from the foreword through places large and tion and in which Gideon Bible: pass important streams of national life from laymen “The Gideons are from the various day day.” evangelical denominations, Christian busi- 428, Bible, citing just Gideon professional ness and men with a vital testi- preceding Page the Foreword G-29. mony primary object for Lord. The 576 Florida, Orange County. 231.09(2) (see 2, supra) § children note

public school methods of distribu- two unconstitutional. We conclude that have used it They distribution, presently wave of unconstitutional as the first worded. tion. classrooms, into simply walked Gideons period a years, Over many the Su- who would like a free asked the children preme Court developed has a three test out the Bibles to the Bible, passed for determining whether or not a chal- their In the hands. who raised children lenged state statute violates the First distribution, set the Gideons wave of second See, g., Amendment. e. Meek v. Pittenger, point distribution Bible up a central 1975, 349, 1753, 421 95 44 U.S. S.Ct. L.Ed.2d who Bibles wanted and students campus, 217, denied, 1049, reh. 422 U.S. 95 S.Ct. get the distribution center to had walk to 702; 2668, 45 L.Ed.2d Committee for Public methods, however, the dis- them. In both Education Religious Liberty Nyquist, v. & permission with place took tribution 1973, 2955, 413 93 37 S.Ct. L.Ed.2d the local It schools. school board 948; Kurtzman, 1971, Lemon v. 403 U.S. school board repeating also bears 91 S.Ct. 29 L.Ed.2d 745. The recently tabled motion a four only has recently the test as described follows: would have allowed to three vote “First, the statute must have secular of Gideon distribution. new wave legislative purpose. g., Epperson E. Arkansas, 393 U.S. by the rationale persuaded areWe Second, L.Ed.2d must have a ‘pri- distribu cases the above-cited mary effect’ that neither advances nor public Bibles school stu tion of Gideon inhibits religion. g.,E. School District of the First Amendment. If violates dents Abington Township Schempp, in the anything, the method distribution Third, 10 L.Ed.2d 844. S.Ct. even more us is an encroach case before the statute and its administration must First Amendment freedoms ment government avoid excessive entangle- Tudor, the distribution for the than was ment religion. with E. g., Walz v. Tax any provision here did not make Board Comm’n, S.Ct. any the distribution of other than Bibles L.Ed.2d 697.” version, King James nor it make did convenient, “These tests constitute ac- provision parents say have a curate distillation of this Court’s efforts children whether or not the would receive over the past decades to evaluate á wide short, the Bibles.35 In or not receive range governmental action challenged system use of the school school board’s a. prohibi- as violative of the constitutional plac of distribution amounts to its means against tion ‘respecting laws an establish- ing, eyes of at least in the children and provide ment of. religion,’ and thus parents, approval perhaps stamp their proper analysis framework of for the is- Bible, upon the version thus Gideon presented sues in the case before us. It is preference for creating an unconstitutional however, well to emphasize, the tests one over another.36 setting precise must not be viewed as necessary limits to the constitutional in- Virtue Christian quiry, only guidelines but serve which to identify instances which the Way A Long A Little Virtue Goes objectives of the Establishment Clause we impaired. issue must consider is have been Tilton v. final See Rich- ardson, 672, 677-78, virtue” statute of whether “Christian 3, supra. note being students, See distributed to County groups Protestant would feel a join in We with the Courts both Tudor and against tremendous resentment sectarian surmising if in that tables were Brown actions of authorities. the school turned, Douay so that it was version of the Bible, Koran, or the Talmud which was or the

577 2091, 2095, opin- right 790 (plurality 29 L.Ed.2d doubted to prescribe the curriculum BURGER, J.).” C. for its public ion of schools does not carry with it the right prohibit, to pain on of crimi- 358-59, Id., at 95 at 1760. S.Ct. penalty, nal the teaching of a scientific Kurtzman, In Lemon theory or doctrine where prohibition that 2105, 29 L.Ed.2d 91 Court S.Ct. upon is based reasons that violate the stated that First Amendment. It is much too late to precisely “the stated constitu- absence argue may impose State upon tional we must draw lines prohibitions, the teachers in any its schools conditions with three main evils reference chooses, it however they restrictive against the Establishment Clause may be of guarantees.” constitutional protection: ‘spon- was intended afford [Citations omitted]. in- sorship, support, and active financial “In case, the present there can be no sovereign religious volvement of the doubt sought that Arkansas has to pre- Commission, Walz Tax 397 activity.’ vent its discussing teachers from the the- 664, 668, U.S. ory of evolution because it contrary (1970).” L.Ed.2d the belief of some that the Book of Gene- Id., at 2111. 403 U.S. at S.Ct. sis must be the exclusive source of doc- Lemon, emphasized In also trine the origin as to of man. No sugges- govern- “in order to determine whether tion has been made that Arkansas’ law entanglement religion ment is exces- justified by considerations of sive, we must examine the character and state religious other than the views that are purposes of institutions bene- of some of its citizens. It is clear that fited, the nature of aid that the State fundamentalist sectarian conviction was resulting relationship be- provides, and and is the law’s reason for existence. Its government religious tween the antecedent, law,’ Tennessee’s ‘monkey Harlan, sepa- in a authority. Mr. Justice candidly stated purpose: to make it Walz, opinion supra, echoed the clas- rate unlawful ‘to teach theory denies warning ‘programs, very whose sic the story of the Divine Creation of man entangle the state in details apt nature is as taught Bible, in the and to in- teach ’ Id., . . of administration. [397 U.S.] stead that man has descended [1409], S.Ct. at at [90 1425].” lower order of animals.’ Perhaps the at at 2112. publicity sensational attendant Scopes trial induced adopt Arkansas to Purpose Legislative Secular explicit less language. It eliminated Ten- Epperson, supra, In Court discussed story nessee’s reference to ‘the part the first of the three test. In that Divine taught Creation of man’ as passed Bible, had State of Arkansas but there is no doubt making it a of- criminal statute criminal motivation the law was the same:' to in any suppress fense for a teacher state school -to teaching which, theory theory teach Darwinian evolution. thought, was ‘denied’ the divine cre- statute, examining quoted the Court ation of man.” that, Abington, supra, proposition if “Arkansas’ law cannot be defended as an purpose “either or the primary effect [the religious act of neutrality. Arkansas did is the advancement or enactment] not seek to excise from the curricula of inhibition of then the enactment its schools and universities all discussion legislative scope power exceeds the origin of man. The law’s effort Epper- circumscribed the Constitution.” attempt confined to an to blot out son, supra, 393 89 S.Ct. at particular theory supposed because of its The Court then went to hold that these account, conflict with the Biblical literal- “precedents inevitably re- ly Plainly, determine the read. contrary the law is present First, sult in case. un- The State’s mandate of the violation Fourteenth, important, very wording to the More Amendment of bespeaks reli particular statute a Constitution.” gious purpose. The Board and State 107-09, at 272. argued very have us forcefully before that purpose that conclude We the word “Christian” in the statute is a 231.09(2)is part of § virtue” the “Christian adjective import with mere little' or no religion. a particular advancement Under, or its ele application.I statute not disclosed research has Although our construction, mental rules of statutory we which would history legislative illuminating reject argument.38 must The evidence task, partic it of think we on our light shed very persuasive phrase, below is that legisla Florida that significance ular very particu “Christian virtue” suggests years only a few a statute37 passed ture type lar virtue—-a virtue tied virtue of the Christian prior passage its particularly type religion, and .one reading manda statute, made Bible which other, virtue that is be at odds This of Florida. public schools in the tory religions’ Fur minority, of virtue. concepts immediately preceded statute, which thermore, common sense tells us that this is stat the Florida statute in virtue Christian so. If this statute required had the inculca repealed utes, in effect until remained virtue”, virtue”, of “Jewish tion or “Moslem sup it not think unreasonable 1965. We we have no doubt that the unconstitutional statute, virtue the Christian pose ity of the statute would be conceded all. an subsection made additional We can see no forthright, which was honest distinction Bible compulsory as the when the word statute “Christian” is the same substituted statute, comple or for hypo was meant to be “Jewish” “Moslem” in our reading thetical. We A consideration therefore conclude that statute. mentary to statutes, virtue” “Christian statute has as one of to conjunction of the two major purposes par the' advancement of extremely repeal recent gether with the religion.39 ticular statute, reading lends compulsory Bible weight theory persuasive Primary Effect Of Statute particular had in mind a legislature Florida it religion Abington In School Christian District —when —the 231.09(2). Township Supreme Schempp, supra, passed § .statute, passed provided that 37. This It is also a statutory “cardinal rule of construction of the instructional staff “Members shall, significance schools, regu- possible, subject and effect if to the rules and county every early be accorded to of the state board and word. As lations board, perform following Abridgment, functions: shall Bacon’s sect. it was said that every reading. Have, (2) once ought, whole, Bible “a statute to be so — day, readings presence that, prevented, if construed it can be no Bible, Holy pupils sectari- from thé without clause, sentence, superflu- or word shall be an comment.” ous, void, insignificant.” This rule has 231.09(2). original § This statute was the repeated been innumerable times. Another passed the Christian virtue statute When equally recognized every part rule is that 231.09(3). when became § must be statute construed in connection with compulsory was re- statute whole, parts so as to make all the harmo- pealed, statute became Christian virtue nize, possible, give meaning if to each.” 231.09(2). § Hoffman, 1879, Washington Market Co. v. statutory construc- is an elemental rule' of It 112, 115-16, L.Ed. con- that if a “statute admits a reasonable tion argu- 39. We unconvinced the State’s provi- gives of its effect to all struction that “Christian is a shorthand for ment virtue” - sions,” adopt “will a strained read- a court general philosophical If virtue in sense. redundancy. ing which renders one a mere legislature Florida had meant to achieve such Menasche, See, g., United States v. e. effect, they language 513, 519-520, could have chosen L.Ed. S.Ct. 538-539 [75 Co., 1960, 367 better suited J. D. must to the task. Jarecki v. Searle & 615].” 307-08, L.Ed.2d 859, 863. effect of a has primary practices held that if had on the of the Board' of challenged is to advance or state statute Public Orange County Instruction of and religion, that statute must be then inhibit area If schools. the statute read same, violation exactly deemed unconstitutional except that the word us, In the before excised, First Amendment. case “Christian” was we probably would below reveals that Board the record hold the statute constitutional. As it reading, public allowing resolution now, stands we have against measured it the public and Bible distribution in prayers, set by Supreme standards Court for of, passed in furtherance and in schools measuring passes whether a statute muster 231.09(2). upon, we have reliance Since § Amendment, under the First and we have already practices declared these unconstitu- wanting. found it 231.09(2), Section as cur- tional, we can conclude that the stat- only written, rently is unconstitutional. upon ordering ute the resolutions On remand District Court with the the. grounded pri- were has a these help essential shall shape counsel an ap- mary advancing effect of Protestant reli- propriate decree opin- consistent with this other gion inhibiting religions. ion hopefully to bring this case to an end. not already Even if we had found that REVERSED and REMANDED. religious purpose, the statute had a we still would declare statute unconstitu- GEE, Circuit Judge (concurring in primary because of its invalid effect. tional and dissenting part): emphasize also that this statute is We agree I Abington1 condemns the de- affirmatively.40 requires worded It teach- votional period question here. For rea- perform certain tasks—“Members ers sons which I will shortly suggest in another perform following . shall func- context, Mr. Justice Stewart’s dissent in . . every opportunity tions: . embrace that case express seems to me to the sound- inculcate, example, by precept and . view; er majority but the opinion every practice Christian virtue.” law, and we must acknowledge obey it. supplied]. Given the [Emphasis mandatory wording specific and the instruction that it greater reservations, With agree I also ” is to be “Christian virtue which is incul- 231.09(2) that Fla.Stat. § unconstitutional cated, practical then the effect of the stat- requires insofar itas teachers to inculcate likely much to be ute is more the advance- “Christian” virtue in their students. The ment or inhibition of than if the majority warily concedes the statute is not mandatorily statute worded. “probably” would be if constitutional merely exhorted the teachers to inculcate Virtue If Not Of Latest my virtue. part, For I cannot conceive how The Last Word it could fail to be. The Constitution can emphasize hardly commanding We that the downfall of this be read as mentors to “Christian”, is its use be statute word neutral between virtue and vice in and the effect inclusion pupils. catalogue word their It is true that Abington, supra, cated on coercion while the Establishment Court stated Clause, Clause violation need not so attended.” “Free Exercise likewise considered 222-23, here, many 374 U.S. at 83 S.Ct. at 1572. legislative times withdraws federal, here, power, state and We the exertion of need decide whether this stat- ute, by mandatory wording, religion. violates the restraint the free exercise of Its purpose liberty Free well as religious Exercise Clause as the Establish- is to secure in the pres- merely suggest ment Clause. We that the by prohibiting any individual invasions thereof mandatory wording in ence of the this statute authority. necessary civil Hence it is in a constitutionally renders the statute sus- more free exercise case for one to show coercive unconstitutional, pect, than operates against as it effect enactment suggestive, non-mandatory wording. would practice religion. him in the his The distinc- apparent between Abington Schempp, tion the two clauses is School District v. —a predi- (1963). violation the Free Exercise Clause is L.Ed.2d 844 indicates, views is, orderly expression record and ideas find as this virtues Christian faith, hope, public-school all, is, consist ex- well established forum — justice for- cept religious love, temperance, ones. These prudence, be banned have, venture, I wooden, qualities These some nonconstitutional for- titude. young esteemed commonly separation been more mulation wall of between despair, ha- cynicism, Thus, opposites: eyes, than their church and state. before our excess, and foolishness, unfairness tred, circle, matters full come the clock strikes legisla- to them thirteen, But refer to Monkey cowardice. the Trial is and enacted is, though an virtues tively as “Christian” reverse. a phrase, somewhat shorthand accurate There nor is neither need for me occasion four and to save words way which loaded large to such a condemn at crude and insen- to the fas- doubtless-irritating indication a separation sitive version of church the generally endorses that Florida tidious before, all been and state. It has said and faith. Christian could, by the Supreme better than I Court: dissent, however, the inva- court’s I slightest There cannot be the doubt that Distribution,” it “Bible lidating what terms the First Amendment philos- reflects the loose too too and characterization both ophy that and be Church State should being done here and for what was cryptic separated. far And so interference conjures fa- up visions the which one with the “free exercise” and Gideons, where all others admitted vored an “establishment” of religion are con- excluded, buttonholing pupils in halls were cerned, separation complete the must be Testaments classrooms and pressing and and unequivocal. First Amendment bearing Something some re- them. within scope coverage permits of its once have taken may to this semblance prohibition no exception; is absolute. majority first what the terms “the place in Amendment, however, The First does not distribution,” now plainly but it is wave say every respects and there guidelines quoted by the Board’s forbidden separation shall be a of Church and State. majority Yet the majority at note 3. by the Rather, manner, studiously it defines the sees no distinction between apparently specific ways, in which there shall be togeth- lumping them both procedures, two no dependency union or one on concert or prac- But category. er under the one is the other. That common sense by the Board’s currently permitted tice the matter. Otherwise the state and reli- majori- and down guidelines stricken gion would be aliens each other —hos- permitting all to no more than ty amounts tile, suspicious, unfriendly. even deposit who do so to litera- faiths wish to not be required pay Churches could school, place designated by ture at Municipalities even taxes. property up by any picked where it be students permitted police would render not be ignored by want it those who do who religious groups. or fire Po- protection not. helped parishioners into licemen who places worship their would violate procedure” permitted by This is the “only legislative Prayers Constitution. our defendant rules for han- school board’s halls; Thus, appeals Almighty dling majority such matter.2 de- Executive; messages of the Chief that all be religious crees literature must Day proclamations making Thanksgiving entirely completely banned from the help me in our court- holiday; “so God” cannot Orange County even be schools refer- and all other up by room oaths —these picked passers- a table left on through Almighty ences that run to the doing, adopts In so it view of by.3 I, one, laws, rituals, our our ceremo- which find our First Amendment flouting Amend- distressing. This is that all nies would be the First startling and paragraph 3. One detritus must now be 2 in footnote 3 of the assumes 2. See text janitor. opinion. majority burned agnostic agree ment. A fastidious atheist or with Tudor and with the majority. object supplication not, could even Since it is I why do not see our answer opens each session: “God here should not be the same under the save the United States and this Honora- First generally: Amendment let all be heard, ble Court.” Jew, Catholic, Protestant, Buddhist, the Atheist —all who care 312-13, Clauson, Zorach v. enough to come forward to advance or de- (1952). 96 L.Ed. 954 fend their views.5 And this is precisely however, majority, chooses to rest its what Board’s guidelines, voided, here Education, on Tudor Board position provide for. 857, 45 A.L.R.2d 729 N.J. 100 A.2d Any Van- (1953). opinion Chief Justice deference, With majority’s seems the respect, and much of derbilt commands First proposal handling Amendment re- Commencing with is indeed admirable. one ligious questions amounts to silencing those fact, of operative brief statement it speak who wish to in deference to those through sweeps powerful on in its course an who do not wish or care to. This seems to developments the historical lead- epitome of me single especial out for ing up adoption of the First Amend- hostile treatment and to stand the First until, picked precise passage ment Amendment on its head. I dissent from it. quoted by majority out and at note highway to rest leaves and comes sequitur. vast bottom of a non charge had noted earlier that court “[t]he

here is sectarianism” and de- “[t]he of education is accused of

fendant board

showing preference by permitting [!] King James version

distribution . . .”4 the New Testament . It then Henry THIBODEAUX, Plaintiff, F. conflicts between the New Testa- discusses Judaism, ment and the doctrines of conclud-

ing majori- selected passage TEXAS EASTERN TRANSMISSION for ty quotation at note 33: al., CORPORATION et “The of both full force violation Defendants-Appellants, and Federal Constitutions State perceive might revealed when we what Ray Company

happen a single if school board were be- J. & McDermott et sieged by separate applications three al., Defendants-Appellees. the distribution of Bibles—one from No. 75-1960. here, Protestants as another from Catho- -Douay lics for the distribution Bi- Appeals, United States ble, third from Jews for the same Fifth Circuit. privilege their Bible.” March 1977. respect, With I do not see much force here or violation unless the school Rehearing 21, 1977. April Denied proposes one board referred to select writings for more sets of sacred distribution reject others, arrangement

suggested our anywhere in Tudor or in case. proposal, entirely

Were this the I could Subject, course, 4. 100 A.2d at 45 A.L.R.2d at to neutral considerations available, space of time and none which are in issue here.

Case Details

Case Name: Marvin Meltzer, Etc. v. Board of Public Instruction of Orange County, Florida, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 25, 1977

Citation: 548 F.2d 559

Docket Number: 75-1423

Court Abbreviation: 5th Cir.