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and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to crect a wall of separation between Church and State.'”
The dissents in that case did not challenge this interpretation of the coverage of the First Amendment as being too broad, but thought it was applied too narrowly to the facts of that case.
In People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L.Ed. 649, the Supreme Court adhered to Everson and held invalid under the First Amendment the Illinois “released time" program for religious education in the public schools of Champaign. Such instruction was given on school property and on school time by representatives of several different faiths. Students who did not wish to take such instruction were excused from attendance, but were required to pursue secular studies in some other part of the school building. Students released from secular studies were required to be present at the religious classes, and reports of their presence or absence were to be made to their secular teachers. There were present in McCollum both the use of tax-supported property for religious purposes and close cooperation between school authorities and the local religious council in promoting religious education. The majority opinion, written by Mr. Justice Black, stated, in part (333 U.S. at 209–210, 68 S.Ct. at 464):
"The operation of the state's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the taxestablished and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment * * * as we interpreted it in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, [91 L.Ed. 711]."
Mr. Justice Frankfurter, who had dissented in Everson, filed an opinion in which Mr. Justice Jackson, Mr. Justice Rutledge, and Mr. Justice Burton, who had also dissented in Everson, joined, stating the view that the Illinois released time program there involved was invalid under the First Amendment. In it he said (333 U.S. at 213, 68 S.Ct. at 466): “We are all agreed that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an established church.'” This view was recently reiterated by the Supreme Court in Torcaso v. Watkins, 367 U.S. 488, at 493 494, 81 S.Ct. 1680, 6 L.Ed.2d 982, in reversing a judgment of this Court. In McCollum, Mr. Justice Jackson filed a separate concurring opinion in which he expressed agreement with the opinion of Mr. Justice Frankfurter and also concurred in the result reached by the Court. He expressed some reservations. First, he questioned whether the facts of the case established jurisdiction in the Supreme Court, and second, he thought that the Supreme Court should place some bounds on the demands for interference with local schools which that Court is empowered or willing to entertain. Mr. Justice Reed alone dissented.
In Doremus v. Board of Education, 5 N.J. 435, 75 A.20 880, appeal dismissed, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, the New Jersey Supreme Court upheld a statute of that State providing for the reading, without comment, of five verses of the Old Testament at the opening of each public-school day. The Supreme Court of the United States dismissed an appeal from that judgment because of the lack of standing of the appellants to maintain the suit. One appellant was a parent of a child who had graduated, and the case was held moot with respect to that child. The claims of the appellants as taxpayers were held insubstantial and insufficient. Mr. Justice Douglas, with whom Mr. Justice Reed and Mr. Justice Burton agreed, dissented as to the latter holding and thought that the case should have been decided on the merits. The majority opinion intimated doubt as to whether the allegations of the complaint showed injury to the child (who had by then graduated) while she was a student, pointing out that there was “no assertion that she was injured or even offended * * * [by the Bible reading] or that she was compelled to accept, approve or confess agreement with any dogma or creed or even to listen when the Scriptures were read" and also that there was a stipulation that any child could be excused, at his or her parents' request, from the Bible reading and that no such request had been made. 342 U.S. at 432, 72 S.Ct. at 396. The Supreme Court did not, however, rest its dismissal of the appeal of the parent of this child on any ground other than mootness.
6 The opinion was written by Mr. Justice Black and six of the other members of the Court joined in it. Mr. Justice Frankfurter and Mr. Justice Harlan concurred in the result.
In Zorach v. Clauson, supra, the New York “released time" program for religious education for public school students was upheld. Attendance was not compulsory and the religious instruction was not given in school buildings nor was any public expense involved. Students were released on written request of their parents to leave the school premises to receive religious instruction or join in devotional exercises at religious centers, and reports of their attendance were furnished to school authorities by the religious bodies. Students not released to attend religious instruction or observances were required to remain in their classrooms. In the opinion of the Court in Zorach, Mr. Justice Douglas inade the often-repeated statement relied upon by the majority of this Court in this case and by this Court in Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438, reversed, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, that “We are a religious people whose institutions presuppose a Supreme Being." 343 U.S. at 313, 72 S.Ct. at 684. The Court held, over vigorous dissents by Mr. Justice Black, Mr. Justice Frankfurter and Mr. Justice Jackson, that there was no violation of the principle of separation of chrrch and state and that under the New York released time plan “the public schools do no more than accommodate their schedules to a program of outside religious instruction.” The Court then added: “We follow the McCollum case." Id. at 315, 72 S.Ct. at 684.
Because of the different result in Zorach from that in McCollum, there was some relief (shared by this Court in Torcaso) that Zorach marked a retraction from McCollum. Since the decision of Torcaso by the Supreme Court there can hardly be any basis for such a continued interpretation of Zorach. The "wall of separation” between church and state recognized by both the majority and the dissenters in Everson, and described as “high and impregnable” in McCollum (to which case the Court expressed its adherence in Zorach), remains as high and impregnable as ever under Torcaso. Cf. McGown v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, and companion cases, Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 and Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563.
There seems to be no substantial room for dispute that the reading of passages from the Bible and the recital of the Lord's Prayer are Christian religious exercises. This being so, the inclusion of such a reading or recital in the opening exercises of the public schools seems plainly to 'favor one religion and to do so against other religions and against non-believers in any religion. This, I think, is directly contra to the prohibition against any “law respecting an establishment of religion," contained in the First Amendment, as that provision has been interpreted by the Supreme Court. See the Everson, McCollum, Torcaso and McGowan cases, all cited above. I find nothing inconsistent with the broad interpretation therein set forth in either Doremus or Zorach. I have already quoted from Torcaso as to the penetrating reach of the First Amendment. In McGowan, the Chief Justice said in the opinion of the Court (366 U.S. at 441-442, 81 S.Ct. at 1113): “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 * * *.!" The Court then cited Everson, 330 U.S. at 14–15, 67 S.Ct. 504 and cited and briefly discussed McCollum as holding the religious instruction program there involved “to be contrary to the ‘Establishment' Clause." The religious exercises here prescribed seem to me no less so. Here we are dealing not merely with released time, but with a prescribed religious exercise conducted by public school officials in public schools of the State, attendance at which schools (with exceptions not here important) is required (Code (1957), Art. 77, Sec. 231), during school time and in school buildings. Granting that the use of school buildings is not a determinative factor in distinguishing McCollum and Zorach, I think that, if present, it is a relevant factor in determining whether the State is lending its aid to promoting religion. There is, I think, a marked difference between an accommodation of the public school schedule to religious instruction and the inclusion of religious exercises in public school ceremonies. I think that here the State is lending its aid to religion and that McCollum is controlling.
8 If the exercises were confined to reading from the Old Testament, they would be both Jewish and Christian, but still religious.
The fact that individual students, or theoretically all students, may be excused from attendance at these exercises does not, in my estimation, save the rule from collision with the "establishment of religion" clause of the First Amendment, even if it could save it from collision with the "free exercise of religion" clause. The coercive or compulsive power of the State is exercised at least to the extent of requiring pupils to attend school and it requires affirmative action to exempt them from participation in these religious exercises.
This conclusion is in accord with the result reached by a special three-judge District Court in Pennsylvania in Schempp v. School District of Abington Township, 201 F.Supp. 815, decided February 1, 1962. The opinion was written by Biggs, C. J., after remand of the case by the Supreme Court (364 U.S. 298, 81 S.Ct. 268, 5 L.Ed. 2d 89) following the amendment of the Pennsylvania statute pendente lite so as to provide for pupils to be excused upon the written request of a parent or guardian from attending the reading, without comment, of ten verses from the Bible, such reading still being made compulsory in public schools of that Commonwealth.
I have carefully considered the case of Engel v. Vitale, supra, 10 N.Y. 2d 174, 218 N.Y.S. 2d 659, 176 N.E. 2d 579, in which five of the Judges of the Court of Appeals of New York concurred in upholding the reading in a public school of that State of the so called “Regents' Prayer". There, as in the instant case and in Schempp, there were provisions for students to be excused from the exercises at which the prayer was required to be said. I find the dissenting opinion of Judge Dye, in which Judge Fuld concurred, more persuasive than the majority views. The majority seems to me to do as this Court did in Torcaso in placing too much reliance on the result of Zorach and the oft-quoted statement that "We are a religious people whose institutions presuppose a Supreme Being." The opinion of Justice Dye interprets the decisions of the Supreme Court substantially as I have endeavored to do in this dissent.
Despite the provisions for excuse from attending these religious exercises, two further questions relating to coercion (apart from what might be called the general coercion already considered in connection with the “establishment of religion" clause) still remain. One is whether or not there is coercion upon the individual student by reason of his incurring suspicions and losing caste with his fellows, as alleged in the petition. The other is whether or not there is compulsion upon the student or his parent requesting that he be excused, or upon both, to profess disbelief in any religion.
As to the first of these questions it seems to me that under our ordinary rules of pleading, the allegations of the petition are not so insubstantial as to be brushed aside as mere conclusions of the pleader, and that they are sufficient on demurrer. The Supreme Court has recognized in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, in applying the Fourteenth Amendment, that psychological effects upon children may be of vital importance. Such factors are alleged here, and as the case now stands they are admitted by the demurrer.
With regard to the second question stated-requiring a profession of disbelief—the situation here seems to be the converse of Torcaso. There the Supreme Court struck down the provision of the Constitution of this State requiring as a condition of holding an office of public trust that the person elected or appointed thereto declare his belief in the existence of God. Here, since attendance at these religious exercises is compulsory, unless a written parental excuse is filed, what amounts to a profession of disbelief in the religion to which they pertain is required of the parent and perhaps also of the child, at the peril of the child being subjected to the pressures alleged or of the parent and the child, too, if he is old enough to comprehend and share his parents' views respecting religion, subordinating or abandoning their convictions. Cf. Talley v. California, 362 U.S. 60, 80 S. Ct. 536, 4 L. Ed. 20 559, involving a freedom of speech question. Neither a profession of belief nor of disbelief may be required.
These considerations illustrate the intermeshing of the "establishment of religion" and of the "free exercise" clauses of the First Amendment. Hesitancy to expose a child to the suspicions of his fellows and to losing caste with them, will tend to cause the surrender of his and his parents' religious or nonreligious convictions and will thus tend to put the hand of the State into the scales on the side of a particular religion which is supported by the prescribed exercises. Torcaso quoted from Everson with regard to the meaning of the establishment clause; it also explicitly held that the provision which was there condemned "invades the appellant's freedom of belief and religion and therefore cannot be
enforced against him." Whether Torcaso proceeds on one or the other or both of the religious freedom provisions of the First Amendment, it seems clear under all of the cases, including Zorach, that coercion is barred
Engel v. Vitale, supra, cert. granted in U.S. 924, 82 S. Ct. 367, 7 L. Ed. 2d 189, was argued on April 3, 1962, and is now awaiting determination by the Supreme Court. I believe that its decision in that case will be determinative of this. Meanwhile, I can only state my understanding of the effect of prior decisions of the Supreme Court and express my own opinion that those decisions call for a decision of this case reaching a result opposite to that reached by a majority of this Court.
Judge HENDERSON and Judge PRESCOTT have authorized me to say that they join in this dissent.
EDWARD L. SCHEMPP ET AL. V. SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PA., ET AL.
Civ. A. No. 24119
UNITED STATES DISTRICT COURT, E.D. PENNSYLVANIA, FEB. 1, 1962
Action by parents individually and as guardians of their children against a school district and others to enjoin enforcement of a Pennsylvania statute providing for Bible reading in the public schools. A three-judge District Court, Biggs, Circuit Judge, held that Pennsylvania statute requiring Bible reading in the public schools violated establishment of religion clause of the first amendment to the federal constitution as applied to the states by the fourteenth amendment, notwithstanding provision in the statute for excusing a child from the reading.
Decree in accordance with opinion. 1. Courts Cm 260.4
Doctrine of abstention did not prohibit federal court from determining constitutionality of Pennsylvania statute requiring Bible reading in public schools, before Pennsylvania courts had opportunity to construe statute. 24 P.S.Pa. $ 15–1516; U.S.C.A.Const. Amend. 1. 2. Constitutional Law w 42
Parents and children had requisite standing to maintain a suit challenging constitutionality of Pennsylvania statute requiring Bible reading in public schools. 24 P.S.Pa. $ 15–1516; U.S.C.A.Const. Amends. 1, 14. 3. Constitutional Law Cm 84
Schools and School Districts Cm 165
Pennsylvania statute requiring Bible reading in public schools violated establishment of religion clause of first amendment to federal constitution as applied to states by the fourteenth amendment, notwithstanding provision in the statute for excusing a child from the reading. 24 P.S.Pa. $15–1516; U.S.C.A.Const. Amends. 1, 14. 4. Constitutional Law Om 84
Combined practice of Bible reading and mass recitation of the Lord's Prayer by students in public schools, violated first amendment of the federal constitution as applied to the states by the fourteenth amendment, in that such practice provided for an “establishment of religion”. 24 P.S.Pa. 15-1516; U.S.C.A. Const. Amends. 1, 14.
(See publication Words and Phrases, for other judicial constructions and definitions of "Establishment of Religion”.)
Henry W. Sawyer, III, Wayland H. Elsbree, Philadelphia, Pa., for plaintiffs.
C. Brewster Rhoads, Sidney L. Wickenhaver, Philip H. Ward, III Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., Percival R. Rieder, Abington, Pa., for defendants and School Dist. of Abington.
David Stahl, Atty. Gen. of Pennsylvania, John D. Killian, III, Deputy Atty. Gen., for Superintendent of Public Instruction.
Lewis F. Adler, Harrisburg, Pa., for Pennsylvania State Education Ass'n. Maximillian J. Klinger, Theodore R. Mann, Philadelphia, Pa., for American Jewish Congress, amicus curiae.
Sydney C. Orlofsky, Philadelphia, Pa., for Jewish Community Relations Counsel of Greater Philadelphia, amicus curiae.
Lois G. Forer, Philadelphia, Pa., amicus curiae.
For a full understanding of the problems presented by this case it will be necessary to read our earlier opinions at D.C. 1950, 177 F. Supp. 398; D.C. 1959, 184 F. Supp. 381; and D.C. 1961, 195 F. Supp. 518. To recapitulate events briefly we state that the suit at bar was brought on February 14, 1958, by Edward and Sidney Schempp as parents and natural guardians of the minor plaintiffs, Ellory, Roger and Donna, all residents of Abington Township, Pennsylvania, against the School District of Abington Township, against the Principal of the Abington Senior High School and the Principal of the Huntingdon Junior High School, in Abington Township. The purpose of the suit was to have this court declare unconstitutional Section 1516 of the Pennsylvania Public School Act of March 10, 1949, as it then existed. 24 P.S. & 15-1516. Section 1516 provided for the compulsory reading of ten verses of the “Holy Bible” at the opening of each public school in the Commonwealth of Pennsylvania on each school day by teachers or by students and prescribed a specific penalty to be imposed on a teacher in case of failure to obey the mandate of the statute.
The Schempps, who are Unitarians, objected to the Bible reading pursuant to the statute on the grounds, among others, that this constituted an establishment of religion and prohibited the free exercise of religion in violation of the First Amendment. We agreed with these contentions and on September 17, 1959, entered a judgment declaring the statute unconstitutional and enjoined its enforcement. See D.C.1959, 177 F.Supp. 398. The defendants appealed to the Supreme Court of the United States. Thereafter Act No. 700 was passed by the General Assembly of Pennsylvania and became effective on December 17, 1959. Thereby the Act of March 10, 1949 was amended. The amending Act provides as follows: "At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian." See 24 P.S. § 15-1516 (Supp. 1960). Following the enactment of this amendment and certain steps which need not be set out here, the Supreme Court on October 24, 1960, handed down a per curiam opinion and order, 364 U.S. 298, 81 S.Ct. 268, 5 L.Ed.2d 89, vacating our judgment and remanding the case for such further proceedings as might be appropriate in the light of the amending statute.
On January 4, 1961, the plaintiffs moved for leave to file a supplemental pleading under Rule 15(d), Fed.R.Civ.Proc., 28 U.S.C. The supplemental pleading, really a supplemental complaint, provides only for the substitution in the original complaint of the new citation and text of the amended statute in place of the citation and text of the statute as it was prior to amendment and the elimination of all the paragraphs in the complaint relating to Ellory Schempp, he having graduated from the Abington Senior High School. The amendments have been allowed and the supplemental pleading has been filed. For a more detailed description of what took place see D.C. 1959, 184 F.Supp. 381, and D.C.1961, 195 F.Supp. 518. The Superintendent of Public Instruction of the Commonwealth of Pennsylvania has been permitted to intervene as a party defendant.
Hearing has been had on the amended pleadings. Evidence has been taken. The case has been fully briefed and argued. It is now ripe for decision.
It is unnecessary to review the evidence taken at the former hearings or to repeat here the findings of fact set out in our first opinion, reported at D.C.1959, 177 F.Supp. 398 et seq. The present Bible reading statute permits a student to be excused from attending Bible reading upon the written request of his parent or guardian. The statute itself contains no specific penalty to be imposed upon the teacher who fails to observe its mandate as was the case prior to the 1959 amendment. The teacher, however, who refuses or fails to obey the mandate of the amended statute may have his contract of employment terminated pursuant to 24 P.S. § 11-1122 (Supp.1960). This is a provision of the Pennsylvania Public School Act which speaks strongly for itself and is set out in the margin."
The procedure followed in the Abington Senior High School, following the amendment of Section 1516, did differ somewhat from that which was in effect prior to the amendment. We describe it briefly. The children attending the High School, Roger and Donna included, reported to their "homerooms” at 8:15
1 24 P.S. $ 11-1122 (Supp. 1960) provides: "The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe * * *." See also Board of Public Education, School District of Phil. adelphia v. Bernard August, 406 Pa. 229, 177 A.2d 809 (1962).