State ex rel. Freeman v. Scheve, 65 Neb. 853

State ex rel. Freeman v. Scheve

65 Neb. 853 | Neb. | 1902

Lead Opinion

Ames, C.

Section 4 of article 1 of the constitution of this state is as follows: “All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their OAvn consciences. No person shall be compelled to attend, erect or support, any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted.” Section 11 of article 8 of the constitution reads as follows: “No sectarian instruction shall be allowed in any school or institution supported, in whole or in part, by the public funds set apart for educational purposes.” Daniel Freeman is a resident taxpayer and a patron of the public school in school district No. 21 in Gage county. He applied for and obtained an alternative writ of mandamus running to the school board of said district, alleging that against his protest and in disregard of his objections and in opposition to his demands, the board permitted a teacher employed by them in said school to engage daily, in school hours, in the public school building in said district, and in the presence of the pupils, in certain religious and sectarian exercises, consisting of the' reading of passages of her own selection from a book com*870monly known as King James’s version or translation of the Bible, and in singing certain religious and sectarian songs, and in offering prayer to the Deity according to the customs and usages of the so-called orthodox evangelical churches of this country, and in accordance with the belief and practices of such churches, the pupils joining in the singing of such songs or hymns. The return to the writ admitted the foregoing recited facts, except that it denied that the exercises complained of were sectarian; but the teacher, who was produced as a witness, admitted that she regarded them as constituting a religious worship, and that she conducted them solely for that reason. That they are correctly so described there can be no doubt. Protestant sects who maintain, as a part of their ritual and discipline, stated weekly meetings, in which the exercises consist largely of prayers and songs and the reading or repetition of Scriptural passages would, no doubt, vehemently dissent from the proposition that such exercises are not devotional, or not in an exalted degree worshipful, or not intended for religious edification or instruction. That they possess all these features is a fact of such universal and familiar knowledge that the courts will take judicial notice of it without formal proof. That such exercises are also sectarian in their character is not less free from doubt. For more than three centuries it has been the boast and exultation of the Protestants and a complaint and grievance of the Roman Catholics that the various translations of the Bible, especially of the New Testament, into the vernacular of different peoples, háve been the chief controversial weapons of the former, and the principal cause of the undoing of the latter. For the making of such translations Wyclif, Luther, Tyndale and others have been commended and glorified by one party, and denounced and anathematized by the other. Books containing such translations have been committed to the flames as heretical, and their translators, printers, publishers and distributers persecuted, imprisoned, tortured, and put to death for participating in their production and distribution. The sev*871eral popular versions differ in some particulars from each other, and all differ from the Catholic canon, both in rendition of passages from Avhicli sectarian doctrines are derived by construction, and in the number of books or gospels, constituting Avbat is regarded as the Avritten record of Divine revelation. In addition to this, there are persons avIio are convinced, upon grounds satisfactory to them, that considerable parts of the Avritings accepted by all Protestant denominations are not authentic, Avhile devout HebreAvs maintain that the Ncav Testament itself is not entitled to a place in the true Bible. These diverse opinions have given rise to a great number of religious sects or denominations. To some of these sects the reading in public of any portion of any version of the Scriptures unaccompanied by authoritative comment or explanation, or the reading of it privately by persons not commissioned so to do by the church, is objectionable, and an offense to their religious feelings; to some, the utterance of public prayer, except recitations from Scripture, is a vain and wicked act; and to some, the songs and hymns of praise in AAdiich others engage are a stumbling-block and an offense.

We do not think it AAdse or necessary to prolong a discussion of what appears to us an almost self-evident fact, —that exercises such as are complained of by the relator in this case both constitute religious Avorship and are sectarian in their character, Avithin the meaning of the constitution. Nor do Ave feel inclined to make Avhat might be looked upon as a spurious exhibition of learning by quoting at length from the many judicial decisions and utterances of eminent men in this country concerning the subject. Perhaps the case most nearly in point, because of similarity both of facts involved -and of constitutional enactments construed to those in the case at bar, is State v. District Board, 76 Wis., 177, 44 N. W. Rep., 967. There are three separate and concurring opinions in this case by three of the eminent judges of that court. The discussion includes a thorough review of both the legal principles involved, and of the historical aspects of the controversy, *872and, for the most part, and in essential particulars, voices our own views. We think it, therefore, sufficient for our purpose to direct attention to that authority.

But there is another matter deserving of consideration in this connection. Secular education of children within prescribed ages is, by a statute of this state, made compulsory. Punctuality and regularity of attendance at the time fixed for the beginning of and throughout the daily sessions of a district school are of first importance, both as measures of discipline and for the development of a trait, or the formation of a habit, of extreme importance to the students in after-life. Yery justly, and almost, if not quite, necessarily, pupils are required to conform to these regulations, or incur the penalty of loss of rank in deportment and scholarship. Unless opinions of universal acceptance in this country since the foundation of our government are at fault, it is a policy of the highest importance that the public schools should he the principal instruments and sources of popular education, because they qxert, more than any other institution, an influence pro-motive of homogeneity among a citizenship drawn from all quarters of'the globe. But if the system of compulsory education is persevered in, and religious worship or sectarian instruction in the public schools is at the same time permitted, parents will be compelled, to exposé their cliil•dren to what they deem spiritual contamination, or else, \¡ while bearing their share of the burden for the support of public education, provide the means from their own pockets for the training of their offspring elsewhere. It might he reasonably apprehended that such a practice, besides being unjust and oppressive t§ the person immediately concerned, would, by its tendency to the multiplication of parochial and sectarian schools, tend forcibly to the destruction of one of the most important, if not indispensable, foundation stones of our form of government. It will be an evil day when anything happens to lower the public schools in popular esteem, or to discourage attendance upon them by children of any class.

*873The district court, without consideration of the merits of the controversy, adjudged a dismissal of the suit upon the ground that the practices complained of were so far within the discretion of the district hoard as not to be subject to control by mandamus. In that opinion we were— or at least the writer was — at first inclined to concur. More mature reflection has, however, convinced us that this view is erroneous. The administration of the public funds for educational purposes is entrusted solely to these boards, and the nature of their office, we think, especially enjoins upon them the duty of seeing to it that the constitutional prohibition is observed.

It may be unnecessary fo remark that neither the writer nor the court is intended to be committed to any view of any of the matters of theological or exegetical controversy touched upon in the foregoing discussion. All that is intended to be said is that such matters, being the subjects of sectarian differences, are excluded by the express words of the constitution from being taught, or in any degree countenanced, in educational institutions maintained to any extent by the public funds. It is the function of the court to expound, not religious creeds or writings, but the constitution and laws of the state. We are of opinion that the return does not state facts sufficient to constitute a defense to the alternative writ, and it is recommended that the judgment of the district court be reversed, and that a peremptory writ as prayed issue from this court to the respondents and their successors in office.

Dtjeeie and Albert, CC., concur.-

By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and that a peremptory writ as prayed issue from this court to the respondents and their successors in office.

Reversed.

Concurrence Opinion

Holcomb, J.,

concurring specially.

I concur in the foregoing opinion in so- far as it is held therein that the exercises which it is sought to have eliminated as conducted in the district school in which respondents are school officers violate the constitutional provision declaring that no sectarian instruction shall be allowed in the public schools. As to the views apparently entertained and held to in the opinion to the effect that the exercises complained of constitute thereby the schoolhouse a place of worship within the meaning and contrary to the section of the constitution wherein it is ordained “no person shall be compelled to attend, erect or support any place of worship against his consent,” I do not agree. In my judgment, such an interpretation is not justified by any sound rule of construction as to the meaning of the provisions quoted. Moore v. Monroe, 64 Ia., 367, 20 N. W. Rep., 475; Pfeiffer v. Board of Education, 118 Mich., 560, 42 L. R. A., 536, 77 N. W. Rep., 250. If the views therein expressed are sound, then it would seem that it is in the power of any taxpayer to prevent religious exercises in any of the penal, reformatory or eleemosynary institutions in the state, and to close the doors of the state capitol to the chaplains of both branches of the legislature. Provisions in substance, if not in the exact language of our constitution, relating to freedom of religious worship and exemption from involuntary support of any place of worship, are found in very many of the constitutions of the different states of the Union. With the exception of the case from Wisconsin cited in the opinion, I know of no authority holding to the view that exercises in the public schools or other secular institutions of the nature and character *875shown to have been engaged, in in the case at bar would constitute the place where held a place of worship within the meaning of the fundamental law. Says Judge Cooley, who as an author in this branch of jurisprudence ranks highest: “The American constitutions contain no provisions Avhich prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknoAAdedge the fitness of recognizing in important human affairs the superintending care and control of the great Governor of the universe, and of acknoAvledging with thanksgiving His boundless favors, or bowing in contrition when visited with the penalties of His broken laAvs. No principle of constitutional laAv is violated when thanksgiving or fast days are appointed; Avhen chaplains are designated for the army and navy; Avhen legislative sessions are opened Avith prayer or the reading of the Scriptures, or when religious teaching is encouraged by the general exemption of the houses of religious Avorship from taxation for the support of state government.” Cooley, Constitutional Limitations [5th ed.], p. 582. Nor do I Avish to be understood as holding to the vieAV that it is not Avithin the discretionary poAver of the authorities of school districts to sanction, if deemed AAdse, under proper restrictions, the reading of the Bible or portions thereof, or readings therefrom, in the public schools. The Bible itself is not a sectarian book, and it is an erroneous conception to so regard it. . Altogether, aside from its theological aspects, the Bible has a historical and literary value surpassed by no secular Avritings. Its moral teachings and precepts are of the purest and highest, and appeal to the noblest impulses of mankind, as 'no other literary production ever has. Can anyone successfully contend in the light of the contemporaneous history of the times that the constitutional framers and the people who adopted that instrument intended to altogether exclude the Bible *876from, the schools? If such had been the intention, would not the members of the convention have expressed themselves in such language as could not be misunderstood? A constitutional provision concerning religions freedom should, it is said, be construed in relation to the state of the law and custom as they existed at the time of its adoption, and the courts can take judicial notice of customs and usages in regard to the use of the Bible in the public schools. Pfeiffer v. Board of Education, supra. The provision of the constitution on the subject of sectarian instruction in the public schools should be construed so as to give it the scope and effect intended by its framers and the people who adopted it. This is accomplished by firmly excluding therefrom all forms of instruction calen] ated to establish and confirm in the minds of the students those theological doctrines and beliefs which are peculiar' to some only of the different religious sects. Further than this we are not warranted in going.

The following opinion, overruling a motion for rehearing, was filed on January 21, 1903 : 1. natural Right of Conscience: State Constitution. The right of all persons to worship Almighty Cod according to the dictates of their own consciences is declared by the constitution of this state to be a natural and indefeasible .right. 2. Duty of Government to Teach Religion: Constitution: History. There is nothing- in the constitution or laws of this state, nor in the history of our people, upon which to ground a claim that it is the duty of government to teach religion. 3. The Whole Duty of the State. The whole duty of the state with respect to religion is “to protect every religious denomination in the peaceable enjoyment of its own mode of public worship.” 4. Compulsory Religious Attendance. Enforced attendance upon religious services is forbidden by the constitution, and pupils in a public school can not be required either to attend such services or to join in them. 5. Teacher: Authority: Request: Command. A teacher in a public school, being- vested during school hours with a general authority over his pupils, Ms requests are practically commands. 6. Objection of Parent. It is immaterial whether the objection of a parent to his children attending, and participating in, a religious service conducted by a teacher in the schoolroom during school hours, is reasonable or unreasonable. The right to be unreasonable in such matters is guaranteed by the constitution. 7. Use of Bible. The law does not forbid the use of the Bible in the public schools; it is not proscribed either by the constitution or the statutes; and the courts have no right to declare its use to be unlawful because it is possible or probable that those who are privileged to use it will misuse the privilege by attempting to propagate their own peculiar theological or ecclesiastical views and opinions. 8. Point Where Courts May Interfere. The point where the courts may rightfully interfere to prevent the use of the Bible in a public school, is where legitimate use has degenerated into abuse, — where a teacher employed to give secular instruction has violated the constitution by becoming a sectarian propagandist. 9. Bible-B.eading: Sectarian Instruction. Whether it is prudent or politic to permit Bible reading in the public schools is a question for the school authorities, but whether the practice of Bible reading has taken the form of sectarian instruction is a question for the courts to determine upon evidence. . 10. -: -: Presumption. It will not be presumed in any case that the law has been violated; every alleged violation must be established by competent proof.

Rehearing

Sullivan, C. J.

This case was decided at tbe last term and is now before ns on motion for a rebearing. In tbe brief filed in support of tbe motion the distinguished counsel for respondents has with considerable ardor attacked, not only tbe decision, but what be supposes to be its implications. Tbe questions discussed are important and they have received our most serious consideration,. We have again with great care gone over tbe arguments of counsel and have again critically examined all of tbe adjudged cases bearing directly or indirectly upon tbe points in controversy. Tbe decision of tbe supreme court of Michigan — a decision rendered by a divided bench — may, perhaps, be regarded as an authority in favor of one of tbe positions for which respondents contend, but opposed to that case are tbe *878unanimous judgments of the highest courts of Ohio and Wisconsin. Other cases cited in the briefs are based upon constitutional provisions essentially different from' ours and are therefore entitled to but little weight as precedents. The fact that there has been Bible reading and religious exercises in many of the public schools ever since the present constitution was adopted is cited as evidence of a contemporaneous and practical construction in favor of the practice; but in our opinion, it is rather to be regarded as evidence of the temperate and tolerant spirit of our people, of the Avaning influence of doctrinal differences and of a clearer and more general perception of the cardinal truth that, after all, Christianity is greater than creed. It has been the policy of some rulers, as, for instance, Catherine de Medici, to strengthen the throne by dividing the people; but in this country it has been the constant policy of government to unite the people, to bring them closer and closer together, to dissipate race and religious prejudices and to fuse their sentiments and aspirations. One of the means to accomplish, this end was to give all religious sects and systems a free field and no favors. So far as religion is concerned the laissez-faire theory of government has been given the Avidest possible scope. The suggestion that it is the duty of government to teach religion has no basis whatever in the constitution or laws of this state, nor in the history of our people. The teaching of religion Avould mean teaching the system of faith and Avorship of one or more of the religious sects; it would mean sectarianism in the public schools, and to put sectarianism into the schools Avould, according to the opinion prevailing when the constitution was ratified, be to put venom into the body politic. In section á of the bill of rights we find this language: “Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its OAvn mode of public Avorship, and to encourage schools and the means of instruction.” There is *879no uncertainty as to the meaning of this clause; there is no room for construction; and where, as Judge Cooley has said, the meaning of an instrument is plainly declared by the instrument itself, courts are hot at liberty to search elsewhere. The duty of the state with respect to religion —its whole duty — is “to protect every religious denomination in the peaceable enjoyment of its own mode of public worship.” This duty is not due alone to the different denominations of the Christian religion, but is due to every religious body, organization or society whose members are accustomed to come together for the purpose of worshiping the Supreme Being. The framers of the constitution, after expressing their gratitude to Almighty God for freedom, declared that the right of all persons to worship according to the dictates of their own consciences is a natural and indefeasible right. This.right of the relator has been infringed. Without his consent and over his protest his children have been compelled to attend divine worship and to participate in it. They have been obliged to give homage to God, not according to the dictates of their own consciences or the consciences of their parents, but according to the dictates of the conscience of the teacher. Undoubtedly the teacher is a sincere and well-meaning young woman, and was actuated by the purest and best motives, but in discharging what she conceived to be an imperative duty to her Creator, she violated a right secured to the relator by the supreme law of the state. The regular morning exercises of the school consisted of a formal or improvised prayer, followed by the singing of Gospel Hymns, such as “Jesus, Lover of my Soul” and “When He Cometh.” In these exercises the pupils were compelled to join, and it -was their custom, when prayer was offered, to rise from their seats and stand in an attitude of reverence. It is said that the relator’s children were subjected to. no compulsion, but that is not true. It was not only their right to attend the school, but under the statute (Compiled Statutes, 1901, ch. 79, subdiv. 16, sec. 1), it was their duty to attend that school or some *880other. As the morning exercises were conducted during school hours, it is difficult to see how they could attend the school without attending worship. But in our view they were not only compelled to attend worship, but to participate in it. The school being in session, the right to command was vested in the teacher, and the duty of obedience imposed upon the pupils. Under such circumstances a request and a command have the same meaning. A request from one in authority is understood to be a mere euphemism; it is in fact a command in an inoffensive form. The teacher, in describing her manner of conducting the exercises, says that after reading from the Bible she “called upon” the pupils to rise, and that she “had them rise from their seats and stand” while she offered prayer. When we take into account the fact that she was dealing with children, it can hardly be doubted that any pupil who joined unwillingly in the exercises joined under compulsion. Whether Mr. Freeman was reasonable or unreasonable in objecting to his children actively or passively participating in the simple religious service conducted by the teacher, is altogether immaterial. Home men always have been unreasonable in such matters, and their right to continue to be unreasonable is guaranteed by the constitution and characterized as a natural and indefeasible right. The privilege of choosing when, where and how he shall worship is given unconditionally to every one. He may freely choose his own prayers, songs and postures; and none of these may be lawfully imposed upon him, either in the public schools or elsewhere, except possibly in the penal, reformatory or other institutions Avhere the state stands in loco parentis to the inmates. In order to make it entirely clear that the Bible Avas not read in the school as mere literature, and that the hymns were not sung as a vocal exercise and that the prayers were not offered for the sake of their reflex influence, but that the several acts were acts of religious homage and were intended to be devotional, we quote from the testimony of the teacher:

*881Q. Now, you say this matter of reading the Bible and singing of hymns was talked over by Mr. Odell at the time he employed you?

A. Yes, sir.

Q. Did you talk about any other branches that you were going to teach at that time?

A. I spoke about having new books; needing a new set of books.

Q. Why was it that you and he thought it proper and necessary that these exercises should be conducted?

A. One reason I spoke about it was because I had said at the beginning that I did not care to take the contract unless I had the privilege of having the exercises. I said I was in favor of doing all I could for the district, and was in favor of doing all I could to have a good school.

Q. Why did you think these exercises so important?

A. There was nothing only that I had always had them and I knew they had done away with them.

Q. And you couldn’t open school without them?

A. Not according to my belief; no, sir.

Q. According to your belief, then, these are very necessary as a part of the school exercises?

A. I think it is important to having reading of the Bible and singing of songs in the school.

Q. And then you think that the way you have of reading the Bible is very important?

A. I think it is the Book of all books.

Q. For what purpose do you read it?

A. For the benefit of myself and those with whom I come in contact.

Q. In what particular way do you expect to benefit yourself and the children?

A. I think there is a higher Being that has something to do with our actions, and I know in many instances I have been directed to do things right, wherein if I hadn’t trusted in Him, my Saviour, I would have been led away.

Q. And you read that book as religious exercises be*882cause you think it is important for that purpose, don’t you?

A. I think it is.

Q. Yes, and you read it because you think it is the word of God?

A. Yes, sir, I do.

Q. And you believe that sincerely?

A. Yes, sir, I do.

Q. And you select such parts to read as you think proper, don’t you?

A. Yes, sir, just as I think it would be best for the pupils and myself.

Q. And whenever you see fit to read, you read?

A. Yes, sir.

Q. And you read whatever you see fit to read?

A. Yes, sir.

Q. And did you read from the New Testament and the Old Testament both?

A. Yes, sir.

Q. And why do you consider it is necessary to offer a prayer?

A. I think Ave are taught to pray.

Q. Yes, you think it is done as an act of Avorship, the Avhole thing?

A. We think it is; yes, sir.

Q. Intended to worship God?

A. Yes, sir.”

It is said by Commissioner Ames that the morning exercises conducted by Miss Beecher constituted sectarian instruction. This conclusion is vigorously assailed, but, in our judgment, it is warranted by the evidence and Ave adhere to it. The decision does not, however, go to the extent of entirely excluding the Bible from the public schools. It goes only to the extent of denying the right to use it for the purpose of imparting sectarian instruction. The pith of the opinion is in the syllabus, which declares that “Exercises by a teacher in a public school in a school building, in school hours, and in the presence *883of the pupils, consisting of the reading of passages from the Bible, and in the singing of songs and hymns, and offering prayer to the Deity in accordance with the doctrines, beliefs, customs or usages of sectarian churches or religious organizations, is forbidden by the constitution of this state.” Certainly the Iliad may be read in the schools without inculcating a belief in the Olympic divinities, and the Koran may be read without teaching the Moslem faith. Why may not the Bible also be read without indoctrinating children in the creed or dogma of any sect? Its contents are largely historical and moral; its language is unequalled in purity and elegance; its style has never been surpassed; among the classics of our literature it stands pre-eminent. It has been suggested that the English Bible is, in a special and limited sense, a sectarian book. To be sure there are, according to the Catholic claim, vital points of difference with respect to faith and morals betwen it and the Douai version. In a Pennsylvania case cited by counsel for respondents, the author of the opinion says that he noted over fifty points of difference between the two versions, — some of them important and others trivial. These differences constitute the basis of some of the peculiarities of faith and practice that distinguish Catholicism from Protestantism and make the adherents of each a distinct Christian sect. But the fact that the King-James translation may be used to inculcate sectarian doctrines affords no presumption that it will be so used. The law does not forbid the use of the Bible in either version in the public schools; it'is not proscribed either by the constitution or the statutes, and the courts have no right to declare its use to be unlawful because it is possible or probable that those who are privileged to use it will misuse the privilege by attempting to propagate their own peculiar theological or ecclesiastical views and opinions. The point where the courts may rightfully intervene, and where they should intervene without hesitation, is where legitimate use has degenerated into abuse, — where a teacher employed to give *884secular instruction has violated the constitution by becoming a sectarian propagandist. That sectarian instruction may be given by the frequent reading, without note or comment, of judiciously selected passages, is, of course, obvious. A great modern philosopher — perhaps the greatest— has said that persistent iteration is the most effective means of forcing alien conceptions upon reluctant minds. Whether it is prudent or politic to permit Bible reading in the public schools, is a question for the school authorities to determine; but whether the practice of Bible reading has taken the form of sectarian instruction in a particular case is a question for the courts to determine upon j evidence. It can not be presumed that the law. has been J violated; the alleged violation must in every instance be/ established by competent proof. The value of the common schools as disseminators of knowledge and social levelers is well understood and justly appreciated, and there is little likelihood that the people will ever permit their usefulness to be impaired by sectarian controversies. When we consider that this is the first case of its kind ever presented to this court for decision, we feel assured that neither teachers nor school boards have been much inclined to bring discord into the schools for the chance of securing by indirection a slight sectarian advantage. But if the fact were otherwise, it could not in any way affect our conclusion. The section of the constitution which provides that “no sectarian instruction shall be allowed in any school or institution supported in whole or in part by the public funds set apart for educational purposes,”* can not, under any canon of construction with which we are acquainted, be held to mean that neither the Bible, nor any part of it, from Genesis to the Revelation, may be read in the educational institutions fostered by the state. We do not wish to be understood as either countenancing or discountenancing the reading of the Bible in the public schools. Even where it is an irritant element, the question whether its legitimate use shall be continued or *885discontinued is an administrative and not a judicial question ; it belongs to the school authorities, not to the courts.

The motion for a rehearing is overruled and the judgment heretofore rendered is adhered to.

Former judgment adhered to.

Sec. IX, art. 8.

Concurrence Opinion

Sedgwick, J.

I concur in the conclusion reached by the commissioners solely on the ground that the exercises complained of were “sectarian instruction” within the meaning of the, constitution.