FROM:
Abington Township School District v. Schempp (consolidated with Murray v.
Curlett), 374 U.S. 203 (1963),
Almost a hundred years ago in Minor v. Board of Education of Cincinnati, 7
Judge Alphonso Taft, father [374 U.S. 203, 215] of the revered Chief
Justice, in an unpublished opinion stated the ideal of our people as to
religious freedom as one of
"absolute equality before the law, of all religious opinions and
sects . . . .
. . . . .
"The government is neutral, and, while protecting all, it prefers
none, and it disparages none."
Before examining this "neutral" position in which the Establishment and
Free Exercise Clauses of the First Amendment place our Government it is
well that we discuss the reach of the Amendment under the cases of this
Court.
First, this Court has decisively settled that the First Amendment's mandate
that "Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof" has been made wholly applicable
to the States by the Fourteenth Amendment. Twenty-three years ago in
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), this Court, through Mr.
Justice Roberts, said:
"The fundamental concept of liberty embodied in that [Fourteenth]
Amendment embraces the liberties guaranteed by the First Amendment. The
First Amendment declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof. The
Fourteenth Amendment [374 U.S. 203, 216] has rendered the legislatures of
the states as incompetent as Congress to enact such laws. . . ." 8
In a series of cases since Cantwell the Court has repeatedly reaffirmed
that doctrine, and we do so now. Murdock v. Pennsylvania, 319 U.S. 105, 108
(1943); Everson v. Board of Education, supra; Illinois ex rel. McCollum v.
Board of Education, 333 U.S. 203, 210 -211 (1948); Zorach v. Clauson,
supra; McGowan v. Maryland, 366 U.S. 420 (1961); Torcaso v. Watkins, 367
U.S. 488 (1961); and Engel v. Vitale, supra.
Second, this Court has rejected unequivocally the contention that the
Establishment Clause forbids only governmental preference of one religion
over another. Almost 20 years ago in Everson, supra, at 15, the Court said
that "[n]either a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer
one religion over another." And Mr. Justice Jackson, dissenting, agreed:
"There is no answer to the proposition . . . that the effect of the
religious freedom Amendment to our Constitution was to take every form of
propagation of religion out of the realm of things which could directly or
indirectly be made public business and thereby be supported in whole or in
part at taxpayers' expense. . . . This freedom was first in the Bill of
Rights because it was first in the forefathers' minds; it was set forth in
absolute terms, and its strength is its rigidity." Id., at 26. [374 U.S.
203, 217]
Further, Mr. Justice Rutledge, joined by Justices Frankfurter, Jackson and
Burton, declared:
"The [First] Amendment's purpose was not to strike merely at the
official establishment of a single sect, creed or religion, outlawing only
a formal relation such as had prevailed in England and some of the
colonies. Necessarily it was to uproot all such relationships. But the
object was broader than separating church and state in this narrow sense.
It was to create a complete and permanent separation of the spheres of
religious activity and civil authority by comprehensively forbidding every
form of public aid or support for religion." Id., at 31-32.
The same conclusion has been firmly maintained ever since that time, see
Illinois ex rel. McCollum, supra, at pp. 210-211; McGowan v. Maryland,
supra, at 442-443; Torcaso v. Watkins, supra, at 492-493, 495, and we
reaffirm it now.
While none of the parties to either of these cases has questioned these
basic conclusions of the Court, both of which have been long established,
recognized and consistently reaffirmed, others continue to question their
history, logic and efficacy. Such contentions, in the light of the
consistent interpretation in cases of this Court, seem entirely untenable
and of value only as academic exercises.
IV.
The interrelationship of the Establishment and the Free Exercise Clauses
was first touched upon by Mr. Justice Roberts for the Court in Cantwell v.
Connecticut, supra, at 303-304, where it was said that their "inhibition of
legislation" had
"a double aspect. On the one hand, it forestalls compulsion by law of
the acceptance of any creed or the practice of any form of worship. Freedom
of [374 U.S. 203, 218] conscience and freedom to adhere to such religious
organization or form of worship as the individual may choose cannot be
restricted by law. On the other hand, it safeguards the free exercise of
the chosen form of religion. Thus the Amendment embraces two concepts, -
freedom to believe and freedom to act. The first is absolute but, in the
nature of things, the second cannot be."
A half dozen years later in Everson v. Board of Education, supra, at 14-15,
this Court, through MR. JUSTICE BLACK, stated that the "scope of the First
Amendment . . . was designed forever to suppress" the establishment of
religion or the prohibition of the free exercise thereof. In short, the
Court held that the Amendment
"requires the state to be a neutral in its relations with groups of
religious believers and non-believers; it does not require the state to be
their adversary. State power is no more to be used so as to handicap
religions than it is to favor them." Id., at 18.
And Mr. Justice Jackson, in dissent, declared that public schools are
organized
"on the premise that secular education can be isolated from all
religious teaching so that the school can inculcate all needed temporal
knowledge and also maintain a strict and lofty neutrality as to religion.
The assumption is that after the individual has been instructed in worldly
wisdom he will be better fitted to choose his religion." Id., at 23-24.
Moreover, all of the four dissenters, speaking through Mr. Justice
Rutledge, agreed that
"Our constitutional policy . . . does not deny the value or the
necessity for religious training, teaching or observance. Rather it secures
their free exercise. But to that end it does deny that the state can
undertake or sustain them in any form or degree. For this [374 U.S. 203,
219] reason the sphere of religious activity, as distinguished from the
secular intellectual liberties, has been given the twofold protection and,
as the state cannot forbid, neither can it perform or aid in performing the
religious function. The dual prohibition makes that function altogether
private." Id., at 52.
Only one year later the Court was asked to reconsider and repudiate the
doctrine of these cases in McCollum v. Board of Education. It was argued
that "historically the First Amendment was intended to forbid only
government preference of one religion over another . . . . In addition they
ask that we distinguish or overrule our holding in the Everson case that
the Fourteenth Amendment made the `establishment of religion' clause of the
First Amendment applicable as a prohibition against the States." 333 U.S.,
at 211 . The Court, with Mr. Justice Reed alone dissenting, was unable to
"accept either of these contentions." Ibid. Mr. Justice Frankfurter, joined
by Justices Jackson, Rutledge and Burton, wrote a very comprehensive and
scholarly concurrence in which he said that "[s]eparation is a requirement
to abstain from fusing functions of Government and of religious sects, not
merely to treat them all equally." Id., at 227. Continuing, he stated that:
"the Constitution . . . prohibited the Government common to all from
becoming embroiled, however innocently, in the destructive religious
conflicts of which the history of even this country records some dark
pages." Id., at 228.
In 1952 in Zorach v. Clauson, supra, MR. JUSTICE DOUGLAS for the Court
reiterated:
"There cannot be the slightest doubt that the First Amendment
reflects the philosophy that Church and State should be separated. And so
far as interference with the `free exercise' of religion and an [374 U.S.
203, 220] `establishment' of religion are concerned, the separation must
be complete and unequivocal. The First Amendment within the scope of its
coverage permits no exception; the prohibition is absolute. The First
Amendment, however, does not say that in every and all respects there shall
be a separation of Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no concert or union or
dependency one on the other. That is the common sense of the matter." 343
U.S., at 312 .
And then in 1961 in McGowan v. Maryland and in Torcaso v. Watkins each of
these cases was discussed and approved. CHIEF JUSTICE WARREN in McGowan,
for a unanimous Court on this point, said:
"But, the First Amendment, in its final form, did not simply bar a
congressional enactment establishing a church; it forbade all laws
respecting an establishment of religion. Thus, this Court has given the
Amendment a `broad interpretation . . . in the light of its history and the
evils it was designed forever to suppress. . . .'" 366 U.S., at 441 -442.
And MR. JUSTICE BLACK for the Court in Torcaso, without dissent but with
Justices Frankfurter and HARLAN concurring in the result, used this
language:
"We repeat and again reaffirm that neither a State nor the Federal
Government can constitutionally force a person `to profess a belief or
disbelief in any religion.' Neither can constitutionally pass laws or
impose requirements which aid all religions as against non-believers, and
neither can aid those religions based on a belief in the existence of God
as against those religions founded on different beliefs." 367 U.S., at 495
..
Finally, in Engel v. Vitale, only last year, these principles were so
universally recognized that the Court, without [374 U.S. 203, 221] the
citation of a single case and over the sole dissent of MR. JUSTICE STEWART,
reaffirmed them. The Court found the 22-word prayer used in "New York's
program of daily classroom invocation of God's blessings as prescribed in
the Regents' prayer . . . [to be] a religious activity." 370 U.S., at 424 .
It held that "it is no part of the business of government to compose
official prayers for any group of the American people to recite as a part
of a religious program carried on by government." Id., at 425. In
discussing the reach of the Establishment and Free Exercise Clauses of the
First Amendment the Court said:
"Although these two clauses may in certain instances overlap, they
forbid two quite different kinds of governmental encroachment upon
religious freedom. The Establishment Clause, unlike the Free Exercise
Clause, does not depend upon any showing of direct governmental compulsion
and is violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce non-observing
individuals or not. This is not to say, of course, that laws officially
prescribing a particular form of religious worship do not involve coercion
of such individuals. When the power, prestige and financial support of
government is placed behind a particular religious belief, the indirect
coercive pressure upon religious minorities to conform to the prevailing
officially approved religion is plain." Id., at 430-431.
And in further elaboration the Court found that the "first and most
immediate purpose [of the Establishment Clause] rested on the belief that a
union of government and religion tends to destroy government and to degrade
religion." Id., at 431. When government, the Court said, allies itself with
one particular form of religion, the [374 U.S. 203, 222] inevitable
result is that it incurs "the hatred, disrespect and even contempt of those
who held contrary beliefs." Ibid.
V.
The wholesome "neutrality" of which this Court's cases speak thus stems
from a recognition of the teachings of history that powerful sects or
groups might bring about a fusion of governmental and religious functions
or a concert or dependency of one upon the other to the end that official
support of the State or Federal Government would be placed behind the
tenets of one or of all orthodoxies. This the Establishment Clause
prohibits. And a further reason for neutrality is found in the Free
Exercise Clause, which recognizes the value of religious training, teaching
and observance and, more particularly, the right of every person to freely
choose his own course with reference thereto, free of any compulsion from
the state. This the Free Exercise Clause guarantees. Thus, as we have seen,
the two clauses may overlap. As we have indicated, the Establishment Clause
has been directly considered by this Court eight times in the past score of
years and, with only one Justice dissenting on the point, it has
consistently held that the clause withdrew all legislative power respecting
religious belief or the expression thereof. The test may be stated as
follows: what are the purpose and the primary effect of the enactment? If
either is the advancement or inhibition of religion then the enactment
exceeds the scope of legislative power as circumscribed by the
Constitution. That is to say that to withstand the strictures of the
Establishment Clause there must be a secular legislative purpose and a
primary effect that neither advances nor inhibits religion. Everson v.
Board of Education, supra; McGowan v. Maryland, supra, at 442. The Free
Exercise Clause, likewise considered many times here, withdraws from
legislative power, state and federal, the exertion of any restraint on the
free exercise [374 U.S. 203, 223] of religion. Its purpose is to secure
religious liberty in the individual by prohibiting any invasions thereof by
civil authority. Hence it is necessary in a free exercise case for one to
show the coercive effect of the enactment as it operates against him in the
practice of his religion. The distinction between the two clauses is
apparent - a violation of the Free Exercise Clause is predicated on
coercion while the Establishment Clause violation need not be so attended.
Applying the Establishment Clause principles to the cases at bar we find
that the States are requiring the selection and reading at the opening of
the school day of verses from the Holy Bible and the recitation of the
Lord's Prayer by the students in unison. These exercises are prescribed as
part of the curricular activities of students who are required by law to
attend school. They are held in the school buildings under the supervision
and with the participation of teachers employed in those schools. None of
these factors, other than compulsory school attendance, was present in the
program upheld in Zorach v. Clauson. The trial court in No. 142 has found
that such an opening exercise is a religious ceremony and was intended by
the State to be so. We agree with the trial court's finding as to the
religious character of the exercises. Given that finding, the exercises and
the law requiring them are in violation of the Establishment Clause.
There is no such specific finding as to the religious character of the
exercises in No. 119, and the State contends (as does the State in No. 142)
that the program is an effort to extend its benefits to all public school
children without regard to their religious belief. Included within its
secular purposes, it says, are the promotion of moral values, the
contradiction to the materialistic trends of our times, the perpetuation of
our institutions and the teaching of literature. The case came up [374 U.S.
203, 224] on demurrer, of course, to a petition which alleged that the
uniform practice under the rule had been to read from the King James
version of the Bible and that the exercise was sectarian. The short answer,
therefore, is that the religious character of the exercise was admitted by
the State. But even if its purpose is not strictly religious, it is sought
to be accomplished through readings, without comment, from the Bible.
Surely the place of the Bible as an instrument of religion cannot be
gainsaid, and the State's recognition of the pervading religious character
of the ceremony is evident from the rule's specific permission of the
alternative use of the Catholic Douay version as well as the recent
amendment permitting nonattendance at the exercises. None of these factors
is consistent with the contention that the Bible is here used either as an
instrument for nonreligious moral inspiration or as a reference for the
teaching of secular subjects.
The conclusion follows that in both cases the laws require religious
exercises and such exercises are being conducted in direct violation of the
rights of the appellees and petitioners. 9 Nor are these required exercises
mitigated by the fact that individual students may absent [374 U.S. 203,
225] themselves upon parental request, for that fact furnishes no defense
to a claim of unconstitutionality under the Establishment Clause. See Engel
v. Vitale, supra, at 430. Further, it is no defense to urge that the
religious practices here may be relatively minor encroachments on the First
Amendment. The breach of neutrality that is today a trickling stream may
all too soon become a raging torrent and, in the words of Madison, "it is
proper to take alarm at the first experiment on our liberties." Memorial
and Remonstrance Against Religious Assessments, quoted in Everson, supra,
at 65.
It is insisted that unless these religious exercises are permitted a
"religion of secularism" is established in the schools. We agree of course
that the State may not establish a "religion of secularism" in the sense of
affirmatively opposing or showing hostility to religion, thus "preferring
those who believe in no religion over those who do believe." Zorach v.
Clauson, supra, at 314. We do not agree, however, that this decision in any
sense has that effect. In addition, it might well be said that one's
education is not complete without a study of comparative religion or the
history of religion and its relationship to the advancement of
civilization. It certainly may be said that the Bible is worthy of study
for its literary and historic qualities. Nothing we have said here
indicates that such study of the Bible or of religion, when presented
objectively as part of a secular program of education, may not be effected
consistently with the First Amendment. But the exercises here do not fall
into those categories. They are religious exercises, required by the States
in violation of the command of the First Amendment that the Government
maintain strict neutrality, neither aiding nor opposing religion.
Finally, we cannot accept that the concept of neutrality, which does not
permit a State to require a religious exercise even with the consent of the
majority of those [374 U.S. 203, 226] affected, collides with the
majority's right to free exercise of religion. 10 While the Free Exercise
Clause clearly prohibits the use of state action to deny the rights of free
exercise to anyone, it has never meant that a majority could use the
machinery of the State to practice its beliefs. Such a contention was
effectively answered by Mr. Justice Jackson for the Court in West Virginia
Board of Education v. Barnette, 319 U.S. 624, 638 (1943):
"The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to . . . freedom of
worship . . . and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections."
The place of religion in our society is an exalted one, achieved through a
long tradition of reliance on the home, the church and the inviolable
citadel of the individual heart and mind. We have come to recognize through
bitter experience that it is not within the power of government to invade
that citadel, whether its purpose or effect be to aid or oppose, to advance
or retard. In the relationship between man and religion, the State is
firmly committed to a position of neutrality. Though the application of
that rule requires interpretation of a delicate sort, the rule itself is
clearly and concisely stated in the words of the First Amendment. Applying
that rule to the facts of these cases, we affirm the judgment in No. 142.
[374 U.S. 203, 227] In No. 119, the judgment is reversed and the cause
remanded to the Maryland Court of Appeals for further proceedings
consistent with this opinion.
It is so ordered.
Footnotes
[ Footnote 8 ] Application to the States of other clauses of the First
Amendment obtained even before Cantwell. Almost 40 years ago in the opinion
of the Court in Gitlow v. New York, 268 U.S. 652, 666 (1925), Mr. Justice
Sanford said: "For present purposes we may and do assume that freedom of
speech and of the press - which are protected by the First Amendment from
abridgment by Congress - are among the fundamental personal rights and
`liberties' protected by the due process clause of the Fourteenth Amendment
from impairment by the States."
[ Footnote 9 ] It goes without saying that the laws and practices involved
here can be challenged only by persons having standing to complain. But the
requirements for standing to challenge state action under the Establishment
Clause, unlike those relating to the Free Exercise Clause, do not include
proof that particular religious freedoms are infringed. McGowan v.
Maryland, supra, at 429-430. The parties here are school children and their
parents, who are directly affected by the laws and practices against which
their complaints are directed. These interests surely suffice to give the
parties standing to complain. See Engel v. Vitale, supra. Cf. McCollum v.
Board of Education, supra; Everson v. Board of Education, supra. Compare
Doremus v. Board of Education, 342 U.S. 429 (1952), which involved the same
substantive issues presented here. The appeal was there dismissed upon the
graduation of the school child involved and because of the appellants'
failure to establish standing as taxpayers.
[ Footnote 10 ] We are not of course presented with and therefore do not
pass upon a situation such as military service, where the Government
regulates the temporal and geographic environment of individuals to a point
that, unless it permits voluntary religious services to be conducted with
the use of government facilities, military personnel would be unable to
engage in the practice of their faiths.
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
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***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
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THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
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