Sunday, June 17, 2007

An Anniversary to Celebrate

It’s not my usual practice on this blog to include extended quotes. But today, I’m going to deviate. That’s because June 17 is the 44th anniversay of the Supreme Court decision covering The School District of Abington Township v. Schempp (referred to below as 142, and please try not to picture the Three Stooges) and Murray v. Curlett (referred to below as 119). The Schempp family, Unitarians, won in a lower court, which is why Abington Township is mentioned first in the name of their case. (Abington asked the Supreme Court to reconsider the lower court’s finding.) Similarly, Madalyn Murray (the “infamous” atheist) and her son, William, lost in a lower court.

While these two cases were by no means the first or only ones to deal with prayer in public schools, they were extremely important. In both, the state (Pennsylvania in Abington and Maryland in Murray), had passed laws requiring students to listen to a reading from the bible and the Lord’s Prayer at the beginning of the school day. Each state allowed students to be excused if parents wrote letters voicing their objections.

But both states claimed that hearing portions from the bible did not constitute a religious exercise. It was good for the kids’ morals; it helped them understand our nation’s heritage, and it promoted good literature. In addition, some attorneys for the states argued that not allowing the reading infringed on students’ rights to freely exercise their religion. These are familiar songs of the theocrats, weasel excuses to ram their supernatural beliefs down the throats of schoolchildren too young to say “bullshit.”

The opinion, jointly deciding both cases, is most commonly referred to as Abington v. Schempp. (Don't get in an uproar; the common designation is not because of a philosophical preference for Unitarians over atheists. It's because of an alphabetizing preference for A over M.) It was written by Tom Clark; he and seven other justices made up the majority. There was only one dissension. Clark began by reciting the facts in each case and tracing its progress through the court system. He then quoted and explained various precedents. The portion here included is the final section of the opinion; I’ve edited out footnote references and specific citations of other cases discussed earlier. I've also added a few extra paragraph breaks, just to make the reading easier on computer-focused eyes. Otherwise, it’s all Clark’s.

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.

... 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 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. ... 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. ... 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. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. ...

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 [founder James] Madison, "it is proper to take alarm at the first experiment on our liberties." ...

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." ... 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 affected, collides with the majority's right to free exercise of religion. 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, (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.

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.
The writing is legalistic and unpoetic. But it’s so moving to me that I get tears in my eyes when I read it.


Anonymous said...

I agree - fuctional, but very powerful. And the quote from Jackson was wonderful.

Anonymous said...

Yes. That's one memorable case. I remember studying it in law school, along with a West Virginia Board of Education v. Barnette case, which I believe was a flag case, IIRC.

And as a bit of serendipity, the lawyer who argued the Abington case for the State as a young Asst. Attorney General I know personally, as he is a practicing attorney in town. We belong to the same Bar Association, and I've had cases with him. I did not know he was the losing attorney until I pulled the case up again to look at it here.
Small world.

Greg said...

Clark seems to have had such an understanding of the situation and his opinion is so well stated that I think you can be forgiven the extended quote. Thanks for the great post.