students could be excused, was acting in the exercise of discretionary power that the issuance of a writ of mandamus could not stay. But prior to that, the court had found that the facts alleged in the petition for the writ did not "spell out any violation" of the constitutional rights of the petitioners.

[1] Arguments in this case were heard twice. The initial argument was heard by five of the seven judges of this Court on both questions presented by the appeal: (i) whether mandamus is a proper action in which to test the constitutionality of the school board rule; and (ii) whether the provisions of the regulation under attack violate a constitutional right of the petitioners. The reargument was heard by seven judges, one of whom was substituting for Judge Sybert, and in the order directing reargument, we limited the reargument to the constitutional questions raised by the petition. We were then of the opinion and we now hold that where the performance of a duty prescribed by law depends on whether the statute or regulation is constitutional or invalid, there is no reason why the question may not be determined on a petition for a writ of mandamus under such circumstances as are present in this case. Welch v. Swasey, 193 Mass. 364, 79 N.E. 745, 23 L.R.A., N.S., 1160 (1907); 38 Corpus Juris, Mandamus, § 681b (1); 16 C.J.S. Constitutional Law § 95. See also High's Extraordinary Legal Remedies (3rd ed.), § 332b, p. 325, where, in citing State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967, 7 L.R.A. 330 (1890), it is said that "[m]andamus will lie against a board intrusted with the management of public schools to compel them to discontinue the reading of the Bible in such schools." Moreover, there are a number of decisions in this state where the courts without challenge as to the propriety thereof have proceeded to determine a constitutional question preliminary to the grant or refusal of a writ of mandamus. See, for example, University v. Murray, 169 Md. 478, 182 A. 590, 103 A.L.R. 706 (1936); Williams v. Zimmerman, 172 Md. 563, 192 A. 353 (1937); Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438 (1960), reversed (on another ground and decided on merits), 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). The principal question is whether the demurrer was properly sustained. The appellees contend preliminarily that the petitioners have not shown they have standing to challenge the rule and the practice under it in the schools of Baltimore City.

If the petitioners lacked standing to sue, this would require affirmance even though the rule and the practice were unconstitutional. Since we find them to be constitutional, we shall assume the petitioners had standing to sue and proceed to discuss the reasons for our views as to constitutionality.

The essential question thus presented is whether the daily Bible reading and prayer recitation program, at which attendance is not compulsory, is a violation of the "establishment of religion" and "free exercise" clause of the first amendment (as applied to the States through the due process clause of the Fourteenth) or of the "equal protection" clause of the Fourteenth Amendment. We think that neither constitutional provision is violated, for, as we see it, neither the First nor the Fourteenth Amendment was intended to stifle all rapport between religion and government.

"We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe."

Thus spoke Justice Douglas in the majority opinion in Zorach v. Clauson, 343 U.S. 306, at p. 313, 72 S.Ct. 679, at p. 684, 96 L.Ed. 954 (1952).

The Supreme Court of the Uuited States has not yet passed on either of the constitutional questions posed by this appeal. Yet there are several decisions concerning the separation of Church and State which we think point the way and clearly indicate that a public school opening exercise such as this onewhere the time and money spent on it is inconsequential-does not violate the religious clauses of the First Amendment or the equal protection clause of the

Fourteenth Amendment, as would the teaching of a sectarian religion in a public school on school time and at a public expense.

The first of the cases we have in mind is Emerson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947), where the Court, though it recognized that the clause against the establishment of religion was intended to erect a wall of separation between Church and State,' held that the reimbursement of parents for the cost of transporting their children to parochial and public schools by bus did not violate the "establishment of religion" clause of the First Amendment because the purpose of the New Jersey statute [N.J.S.A. 18:14-8] was to provide safe transportation in the general public welfare.

In People of State of Illinois ex rel. McCullum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), however, where the Illinois public schools and the machinery for compelling attendance thereat were used by sectarian teachers to give religious instruction in such public schools to those pupils who were required to attend the religious classes at the request of their parents, while the other pupils (who were not attending the religious classes) were compelled to attend secular classes instead of being released, the Court held in no uncertain terms that such practices fell "squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth)."

And four years later in Zorach v. Clauson, supra, the Court, though following the McCollum case, distinguished it nevertheless by stating that a "released time" program of a type different from that involved in McCollum was not unconstitutional. In New York the public schools are permitted to release students during school hours on the request of parents to go to classes off school premises for religious instruction, but those who are not so released stay on in public school classrooms. In holding that the program did not violate the First Amendment through the Fourteenth, the Court, after noting that the program did not involve religious instruction in public schools or the expenditure of public funds, nor the use of coercion to require public school students to go to religious classrooms, went on to point out (343 U.S. at p. 312, 72 S. Ct. at p. 683) that if the First Amendment "in every and all respects" required a separation of Church and State, then :

"Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths-these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court.'"

This then may well be the key to the difficult problem with which we are confronted.

[2] We think there is little doubt that a decision in this case lies somewhere between the decision in McCollum and that in Zorach. In the McCollum case, where the "tax-established and tax-supported public school system [was utilized] to aid religious groups to spread their faith," the released time program was unconstitutional. And, in the Zorach case, where the public schools did no more than "accommodate their schedules to a program of outside religious instruction," the program was constitutional. It is to be noted, however, that both programs were conducted during school hours, though one involved the use of state funds and the other was at the expense of the churches. But, here, where the use of school time and the expenditure of public funds is negligible, we think the daily opening exercises of the schools in Baltimore City are in the same category as the opening prayer ceremonies in the Legislature of this State and in the Congress of the United States, in the public meetings and conventions which are opened with prayers or supplications to God, and in the formal call of court sessions by the crier in State and Federal courts. For these reasons, and particularly because the appellant-student in this case was not compelled to participate in or attend the program he claims is offensive to him, we hold that the opening exercises do not violate the religious clauses of the First Amendment. With regard to the effect of having been excused from attending the opening exercises, we think it is significant that the Supreme Court, in School District of Abington Township v. Schempp, 364 U.S. 298, 81 S. Ct. 268, 5 L. Ed. 2d 89 (1960) ordered per curiam that the judgment below be vacated and remanded the case to the district court for further proceedings, after it was learned that the Pennsylvania law had been so amended as to provide for the excusing of those students who objected to participating in a school opening ceremony quite similar to that in Baltimore City. It seems to us that the remand of this case

In

at least indicated that the use of coercion or the lack of it may be the controlling factor in deciding whether or not a constitutional right has been denied. reaching this conclusion we are not unmindful that the District Court for the Eastern District of Pennsylvania has, upon the remand, reheard the case, and again held (in an opinion by John Biggs, Jr., Circuit Judge, reported in 201 F. Supp. 815 [1962] that the Pennsylvania statute [24 P.S. § 15-1516] is not constitutional despite the fact that objecting students could have been excused on the request of their parents, but we do not find the decision on remand persuasive and decline to follow it. Moreover, we think it is clear that the case at bar is not governed by the McCollum case on the question of compulsory participation, even though McCollum was "followed" in Zorach as well as in Torcaso on the "separation of church and state" point. In McCollum, there was a degree of compulsion, but in this case, as in Zorach, all compulsion has been removed so far as attendance of the appellate student at the opening exercises is concerned. Furthermore, we are not convinced that Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982, has any bearing on our problem. True, it is a case involving the separation of church and state, but we think it is clearly distinguishable from the instant case. There, in holding that "neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion,'" the Court went on to say (at p. 495, 81 S. Ct. at p. 1684) that the fact "that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by a state-imposed criteria forbidden by the Constitution." In that case the Court was concerned with the compulsion which required a non-believer to profess a belief in God in order to qualify for public office. The present case, however, as has been pointed out, is completely devoid of any compulsion or coercion to attend the school opening exercises. Nor do we find any sustenance for the appellant-student in the Sunday Blue Law cases, including McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961), which was cited at the reargument.

The Bible reading and Prayer recitation programs in the public schools of other states, at which attendance was not compulsory, have been held to be valid by the appellate courts of such states. In an early case, Church v. Bullock, 104 Tex, 1 109 S.W. 115, 16 L.R.A., N.S., 860 (1908), the Court, in upholding a resolution stipulating that students should be present at, but were not required to participate in, the public school exercises in which the Bible was read and the Lord's Prayer was recited, held that the program did not contravene the constitutional provision against the use of public funds to support sectarian religion. In the case of People ex rel. Vollmar v. Stanley, 81 Colo. 276, 255 P. 610 (1927), the Court, although stating that children could not be required against the will of their parents to attend the reading of the Bible in public schools, nevertheless held that the Bible reading ceremony could not be prohibited altogether. In a comparatively recent case, Doremus v. Board of Education, 5 N.J. 435, 75 A.2d 880 (1950), appeal dismissed 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952), the Supreme Court of New Jersey, in observing that the First Amendment did not prohibit the recognition of God, held that the noncompulsory practice of reading the Bible and reciting the Lord's Prayer, in conformity with the applicable statute, did not constitute the establishment of religion or prohibit the free exercise thereof. And the recent case of Engel v. Vitale, 10 N.Y. 2d 174, 176, 218 N.Y.S. 2d 659, 176 N.E. 2d 579 (1961), presently pending in the Supreme Court of the United States, the Court of Appeals of New York affirmed by a divided court a decision of the Appellate Division (11 A.D. 2d 340, 206 N.Y.S. 2d 183) holding that the noncompulsory daily recitation of the "regents prayer" 2 in the public schools was not violative of either the State or Federal guarantee of freedom of religion. See also Donahoe v. Richards, 38 Me. 379 (1854); Moore v. Monroe, 64 Iowa 367, 20 N.W. 475 (1884); Pfeiffer v. Board of Education, 118 Mich. 560, 77 N.W. 250, 42 L.R.A. 536 (1898); Billard v. Board of Education, 69 Kan. 53, 76 P. 422, 66 L.R.A. 166 (1904); Hackett v. Brooksville Graded School District, 120 Ky. 608, 87 S.W. 792, 69 L.R.A. 592 (1905): Wilkerson v. City of Rome, 152 Ga. 762, 110 S.E. 895, 20 A.L.R. 1334 (1922); Kaplan v. Independent School District, 171 Minn. 142, 214 N.W. 18, 57 A.L.R. 185 (1927); and Lewis v. Board of Education, 157 Misc. 520, 285 N.Y.S. 164, modified 247 App. Div. 106, 286 N.Y.S. 174, rehearing denied 247 App. Div. 873, 288 N.Y.S. 751, appeal dismissed 276 N.Y. 490, 12 N.E. 2d 172 (1937), for other cases that have sustained

2 This prayer which is recited following the pledge of allegiance to the flag at the beginning of each school day is worded as follows: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

the reading of the Bible and the recitation of prayers, including the Lord's Prayer, in public schools. And see the annotation in 45 A.L.R. 2d 742.

[3, 4] We come now to the other constitutional question as to whether the appellant-student has been denied the equal protection of the laws guaranteed to him by the Fourteenth Amendment. He relies on Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), declaring as unconstitutional the segregation of the races in public schools, to support the theory that his selfexile from the opening exercises is having a deleterious effect on his relationship with other students in the school. The short answer to this claim is that the equality of treatment which the Fourteenth Amendment affords cannot and does not provide protection from the embarrassment, the divisiveness or the psychological discontent arising out of nonconformance with the mores of the majority. Cf. Footnote 7 to Zorach v. Clauson, supra, at p. 311 of 343 U.S., 72 S.Ct. 679. And see Engel v. Vitale, 18 Misc.2d 659, 191 N.Y.S.2d 453 (Spec. Term 1959). We hold that the opening exercises do not violate the equal protection clause of the Fourteenth Amendment.

Inasmuch as the Supreme Court has not yet spoken with respect to the Bible reading and Prayer recitation ceremonies at school opening exercises, we think we are bound by what we understand is the effect of McCollum as it is explained and expanded in Zorach until such time as the Court speaks further in this uncertain area. So, having decided that the school opening exercises in Baltimore City are not violative of either the First or Fourteenth Amendments, we hold that the demurrer as to both appellants was properly sustained. For the several reasons stated herein, the judgment will be affirmed. Judgment affirmed; appellants to pay the costs.

BRUNE, Chief Judge (dissenting).

This suit for a writ of mandamus brought by a minor through his mother as next friend and by his mother as such and as a taxpayer seeks to bar from the public schools of the City of Baltimore "the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer." Such reading from the Bible and/or use of the Lord's Prayer are required, either collectively or in classes, as a part of the opening exercises in the public schools of Baltimore under a rule of the Board of School Commissioners of that City adopted in 1905 and amended in November, 1960 by adding this provision: "Any child shall be excused from participating in the opening exercises upon the written request of his parent or guardian." The respondents in the suit are (or were) the members of the Board of School Commissioners of Baltimore City.

The petitioners allege inter alia: that the minor petitioner is a student at one of the public schools of Baltimore; 3 that they are both atheists; that prior to the amendment of the above rule in 1960 the infant petitioner was required to attend the exercises prescribed by the rule and that since that amendment he has been excused from attending upon his mother's written request; that the reading of the Bible and/or of the Lord's Prayer constitute a sectarian exercise in the public schools of Baltimore and so contravenes the First and Fourteenth Amendments to the Constitution of the United States; that the rule, as practised, places a premium on belief as against non-belief, that it pronounces belief in God as the source of all moral and spiritual values, equating those values with religious values, and renders "sinister, alien and suspect the beliefs and ideals of your Petitioners, promoting doubt and question of their morality, good citizenship and good faith"; and that the amendment to the rule permitting pupils to be excused upon request from the opening exercises neither negates nor mitigates the infringement of their constitutional rights; that the effect of the amendment is "merely an opportunity for exclusion" of the student petitioner from a stated school exercise which a majority of the pupils have been taught to revere, and that the exercise of that opportunity causes him "to lose caste with his fellows, to be regarded with aversion, and to be subjected to reproach and insult; and that such practice tends to destroy the equality of the pupils which the Constitution seeks to establish and protect."

The respondents demurred to the petition and their demurrer was sustained without leave to amend. Since the case comes before this Court on a ruling on demurrer, we must accept as true all well-pleaded facts. Mahoney v. Bd. of

3 At the time the suit was filed, this petitioner was a student at one public school, but it was stipulated that at the time of the argument he was a student at another public school of Baltimore, and that his change of school does not render the case moot. Cf. Doremus v. Board of Education, 342 U.S. 429, 432-433, 72 S.Ct. 394, 96 L.Ed. 475, where a child's graduation did render the case moot with regard to such child.

Supervisors of Elections, 205 Md. 325, 327, 106 A.2d 927, 108 A.2d 143. A difficulty here (as in many other cases) is to draw a sharp line between allegations of fact and conclusions to be drawn therefrom, and the further problem arises as to whether a conclusion should be accepted as alleged, should be tested on the basis of facts of which courts may take judicial notice, or should be determined only on the basis of proof. See, for example, the several views as to an allegation of coercion expressed in the majority opinion of Mr. Justice Douglas and in the dissenting opinions of Mr. Justice Frankfurter and of Mr. Justice Jackson in Zorach v. Clauson, 343 U.S. 306, 311-312, 321–322, 323, 72 S.Ct. 679, 96 L.Ed. 954.

The majority and minority agree that mandamus is an appropriate remedy to enforce the rights here asserted. A question has, however, been raised as to the standing of the petitioners to maintain the suit at all. The majority assumes, without deciding, that they have sufficient standing to do so, and those who join in this dissent are of the opinion that they do possess such standing. It may be that under Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, the adult petitioner's interest as a taxpayer would not be sufficient, though this case seems rather closer to Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (a taxpayer's suit distinguished in Doremus) because of her allegations with regard to the violation of her convictions by the practice complained of. Cf. Baker v. Carr, 82 S.Ct. 691 (decided March 26, 1962) upholding standing of voters to sue for redress of asserted malapportionment of representation in a state legislature. See also Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, esp. pp. 1298-1299 and comment on Everson and Doremus, pp. 1310-1311. In any event, the mother's interest as a parent and her son's own interest appear to be clearly sufficient under People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, and Zorach v. Clauson, 343 U.S. 306, 309 (n. 4), 72 S.Ct. 679, 96 L.Ed. 954. Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. See also Engel v. Vitale, 10 N.Y.2d 174, 218 N.Y.S.2d 659, 176 N.E.2d 579, in which none of the several opinions in the Court of Appeals of New York found, or even referred to, any want of standing on the part of the taxpayer-parents who brought suit to prevent the recital of the so-called Regents' prayer in a New York public school.

The principal contention of the appellants on the merits is that the reading from the Bible (whichever version may be used) and/or the recital of the Lord's Prayer in the public schools constitute violations of the provisions of the First Amendment, made applicable to the States under the Fourteenth Amendment (Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213), which proscribe any "law respecting an establishment of religion or prohibiting the free exercise thereof." The determination of the case depends upon the meaning and application of the Constitution of the United States. On such questions this Court accepts as binding the decisions of the Supreme Court of the United States and this is, of course, recognized by the majority of this Court in this case as well as by those of us who dissent. The rule is stated here simply because it greatly narrows the matters pertinent to the decision of this case. It would be merely a fruitless exercise in legal history for us to present one more re-examination of the origins and meaning of the religious freedom provisions of the First Amendment, if, as we think, the decisions of the Supreme Court conclude the question to be decided. In Everson v. Board of Education, supra, 330 U.S. at 15-16, 67 S. Ct. at 511, Mr. Justice Black, writing for the majority, said in part:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither 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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance, or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups

No question is raised under the Constitution of this State. See Article 36 of the Maryland Declaration of Rights. Cf. Article 37 and Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982.