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U.S.
Supreme Court
ABINGTON
SCHOOL DIST. v. SCHEMPP, 374 U.S. 203 (1963)
374 U.S. 203 SCHOOL
DISTRICT OF ABINGTON TOWNSHIP, PENNSYLVANIA, ET AL. v. SCHEMPP ET AL. APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF Argued
February 27-28, 1963. MR.
JUSTICE CLARK delivered the opinion of the Court. Once
again we are called upon to consider the scope of the provision of the First
Amendment to the United States Constitution which declares that "Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof . . . ." These companion cases present the issues in the
context of state action requiring that schools begin each day with readings from
the Bible. While raising the basic questions under slightly different factual
situations, the cases permit of joint treatment. In light of the history of the
First Amendment and of our cases interpreting and applying its requirements, we
hold that the practices at issue and the laws requiring them are
unconstitutional under the Establishment Clause, as applied to the States
through the Fourteenth Amendment. I.
The
Facts in Each Case: No. 142. The Commonwealth of Pennsylvania by law, 24 Pa.
Stat. 15-1516, as amended, Pub. Law 1928 (Supp. 1960) Dec. 17, 1959, requires
that "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." The Schempp family, husband and
wife and two of their three children, brought suit to enjoin enforcement of the
statute, contending that their rights under the Fourteenth Amendment to the
Constitution of the United States are, have been, and will continue to be
violated unless this statute be declared unconstitutional as violative of these
provisions of the First Amendment. They sought to enjoin the appellant school
district, wherein the Schempp children attend school, and its officers and the [374 U.S. 203, 206] Superintendent
of Public Instruction of the Commonwealth from continuing to conduct such
readings and recitation of the Lord's Prayer in the public schools of the
district pursuant to the statute. A three-judge statutory District Court for the
Eastern District of Pennsylvania held that the statute is violative of the
Establishment Clause of the First Amendment as applied to the States by the Due
Process Clause of the Fourteenth Amendment and directed that appropriate
injunctive relief issue. 201 F. Supp. 815. 1
On appeal by the District, its officials and the Superintendent, under 28
U.S.C. 1253, we noted probable jurisdiction. 371
U.S. 807 . . . 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. . . 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. 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. MR.
JUSTICE BRENNAN, concurring I.
The First
Amendment forbids both the abridgment of the free exercise of religion and the
enactment of laws "respecting an establishment of religion." The two
clauses, although distinct in their objectives and their applicability, emerged
together from a common panorama of history. The inclusion of both restraints
upon the power of Congress to legislate concerning religious matters shows
unmistakably that the Framers of the First Amendment were not content to rest
the protection of religious liberty exclusively upon either clause. "In
assuring the free exercise of religion," Mr. Justice Frankfurter has said, [374 U.S. 203, 233] "the
Framers of the First Amendment were sensitive to the then recent history of
those persecutions and impositions of civil disability with which sectarian
majorities in virtually all of the Colonies had visited deviation in the matter
of conscience. This protection of unpopular creeds, however, was not to be the
full extent of the Amendment's guarantee of freedom from governmental
intrusion in matters of faith. The battle in Virginia, hardly four years won,
where James Madison had led the forces of disestablishment in successful
opposition to Patrick Henry's proposed Assessment Bill levying a general tax
for the support of Christian teachers, was a vital and compelling memory in
1789." McGowan v. Maryland, 366
U.S. 420, 464 -465. The
specific question before us has, for example, aroused vigorous dispute whether
the architects of the First Amendment - James Madison and Thomas Jefferson
particularly - understood the prohibition against any "law respecting an
establishment of [374 U.S. 203, 235] religion" to reach devotional exercises in the
public schools. 3 It
may be that Jefferson and Madison would have held such exercises to be
permissible - although even in Jefferson's case serious doubt is suggested by
his admonition against "putting the Bible and Testament into the hands of the
children at an age when their judgments are not sufficiently matured for
religious inquiries . . . ." 4
But [374
U.S. 203, 236] I
doubt that their view, even if perfectly clear one way or the other, would
supply a dispositive answer to the question presented by these cases. A more
fruitful inquiry, it seems to me, is whether the practices here challenged
threaten those consequences which the Framers deeply feared; whether, in short,
they tend to promote that type of interdependence between religion and state
which the First Amendment was designed to prevent. 5
Our task is to translate "the majestic generalities of the Bill of Rights,
conceived as part of the pattern of liberal government in the eighteenth
century, into concrete restraints on officials [374 U.S. 203, 237] dealing with the problems of the twentieth
century . . . .". . . A
too literal quest for the advice of the Founding Fathers upon the issues of
these cases seems to me futile and misdirected for several reasons: First, on
our precise problem the historical record is at best ambiguous, and statements
can readily be found to support either side of the proposition. The ambiguity of
history is understandable if we recall the nature of the problems uppermost in
the thinking of the statesmen who fashioned the religious guarantees; they were
concerned with far more flagrant intrusions of government into the realm of
religion than any that our century has witnessed. 6
While it is clear to me that the Framers meant the Establishment Clause to
prohibit more than the creation of an established federal church such as existed
in England, I have no doubt that, in their preoccupation with the imminent
question of established churches, they gave no distinct [374
U.S. 203, 238] consideration to the particular
question whether the clause also forbade devotional exercises in public
institutions. Second,
the structure of American education has greatly changed since the First
Amendment was adopted. In the context of our modern emphasis upon public
education available to all citizens, any views of the eighteenth century as to
whether the exercises at bar are an "establishment" offer little aid to
decision. Education, as the Framers knew it, was in the main confined to private
schools more often than not under strictly sectarian supervision. Only gradually
did control of education pass largely to public officials. 7
It would, therefore, [374 U.S. 203, 239] hardly be
significant if the fact was that the nearly universal devotional exercises in
the schools of the young Republic did not provoke criticism; even today
religious ceremonies in church-supported private schools are constitutionally
unobjectionable. [374 U.S. 203, 240]
Third,
our religious composition makes us a vastly more diverse people than were our
forefathers. They knew differences chiefly among Protestant sects. Today the
Nation is far more heterogeneous religiously, including as it does substantial
minorities not only of Catholics and Jews but as well of those who worship
according to no version of the Bible and those who worship no God at all. 8
[374 U.S. 203, 241] See Torcaso
v. Watkins, 367
U.S. 488, 495 . In the face of such profound changes, practices which may
have been objectionable to no one in the time of Jefferson and Madison may today
be highly offensive to many persons, the deeply devout and the nonbelievers
alike. Whatever
Jefferson or Madison would have thought of Bible reading or the recital of the
Lord's Prayer in what few public schools existed in their day, our use of the
history of their time must limit itself to broad purposes, not specific
practices. By such a standard, I am persuaded, as is the Court, that the
devotional exercises carried on in the Baltimore and Abington schools offend the
First Amendment because they sufficiently threaten in our day those substantive
evils the fear of which called forth the Establishment Clause of the First
Amendment. It is "a constitution we are expounding," and our interpretation
of the First Amendment must necessarily be responsive to the much more highly
charged nature of religious questions in contemporary society. Fourth,
the American experiment in free public education available to all children has
been guided in large measure by the dramatic evolution of the religious
diversity among the population which our public schools serve. The interaction
of these two important forces in our national life has placed in bold relief
certain positive values in the consistent application to public institutions
generally, and public schools particularly, of the constitutional decree against
official involvements of religion which might produce the evils the Framers
meant the Establishment Clause to forestall. The public schools are supported
entirely, in most communities, by public funds - funds exacted not only from
parents, nor alone from those who hold particular religious views, nor indeed
from those who subscribe to any creed at all. It is implicit in the history and
character of American public education that the public schools serve a uniquely [374 U.S. 203, 242]
public
function: the training of American citizens in an atmosphere free of parochial,
divisive, or separatist influences of any sort - an atmosphere in which children
may assimilate a heritage common to all American groups and religions. See
Illinois ex rel. McCollum v. Board of Education, 333
U.S. 203 . This is a heritage neither theistic nor atheistic, but simply
civic and patriotic. See Meyer v. Nebraska, 262
U.S. 390, 400 -403. . . MR.
JUSTICE STEWART, dissenting. I
think the records in the two cases before us are so fundamentally deficient as
to make impossible an informed or responsible determination of the
constitutional issues presented. Specifically, I cannot agree that on these
records we can say that the Establishment Clause has necessarily been violated. 1
But I think there exist serious questions under both that provision and the
Free Exercise Clause - insofar as each is imbedded in the Fourteenth Amendment -
which require the remand of these cases for the taking of additional evidence. . .
It
is, I [374
U.S. 203, 309] think, a fallacious
oversimplification to regard these two provisions as establishing a single
constitutional standard of "separation of church and state," which can be
mechanically applied in every case to delineate the required boundaries between
government and religion. We err in the first place if we do not recognize, as a
matter of history and as a matter of the imperatives of our free society, that
religion and government must necessarily interact in countless ways. Secondly,
the fact is that while in many contexts the Establishment Clause and the Free
Exercise Clause fully complement each other, there are areas in which a
doctrinaire reading of the Establishment Clause leads to irreconcilable conflict
with the Free Exercise Clause. A
single obvious example should suffice to make the point. Spending federal funds
to employ chaplains for the armed forces might be said to violate the
Establishment Clause. Yet a lonely soldier stationed at some faraway outpost
could surely complain that a government which did not provide him the
opportunity for pastoral guidance was affirmatively prohibiting the free
exercise of his religion. And such examples could readily be multiplied. The
short of the matter is simply that the two relevant clauses of the First
Amendment cannot accurately be reflected in a sterile metaphor which by its very
nature may distort rather than illumine the problems involved in a particular
case. . . III.
Since the
Cantwell pronouncement in 1940, this Court has only twice held invalid state
laws on the ground that they were laws "respecting an establishment of
religion" in violation of the Fourteenth Amendment. McCollum v. Board of
Education, 333
U.S. 203 ; Engel v. Vitale, 370
U.S. 421 . On the other hand, the Court has upheld against such a challenge
laws establishing Sunday as a compulsory day of rest, McGowan v. Maryland, 366
U.S. 420 , and a law authorizing reimbursement from public funds for the
transportation of parochial school pupils. Everson v. Board of Education, 330
U.S. 1 . Unlike other
First Amendment guarantees, there is an inherent limitation upon the
applicability of the Establishment Clause's ban on state support to religion.
That limitation was succinctly put in Everson v. Board of Education, 330
U.S. 1, 18 : "State power is no more to be used so as to handicap
religions than it is to favor them." 3
And in a later case, this Court recognized that the limitation was one which
was itself compelled by the free exercise guarantee. "To hold that a state
cannot consistently with the First and Fourteenth Amendments utilize its public
school system to aid any or all religious faiths or sects in the dissemination
of their doctrines and ideals does not . . . manifest a governmental hostility
to religion or religious teachings. A manifestation of such hostility would be
at war with our national tradition as embodied in the First Amendment's
guaranty of the free [374
U.S. 203, 312] exercise of religion."
McCollum v. Board of Education, 333
U.S. 203, 211 -212. That the
central value embodied in the First Amendment - and, more particularly, in the
guarantee of "liberty" contained in the Fourteenth - is the safeguarding of
an individual's right to free exercise of his religion has been consistently
recognized. Thus, in the case of Hamilton v. Regents, 293
U.S. 245, 265 , Mr. Justice Cardozo, concurring, assumed that it was ". .
. the religious liberty protected by the First Amendment against invasion by the
nation [which] is protected by the Fourteenth Amendment against invasion by the
states." (Emphasis added.) And in Cantwell v. Connecticut, supra, the purpose
of those guarantees was described in the following terms: "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 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." 310
U.S., at 303 . . . It
might also be argued that parents who want their children exposed to religious
influences can adequately fulfill that wish off school property and outside
school time. With all its surface persuasiveness, however, this argument
seriously misconceives the basic constitutional justification for permitting the
exercises at issue in these cases. For a compulsory state educational system so
structures a child's life that if religious exercises are held to be an
impermissible activity in schools, religion is placed at an artificial and
state-created disadvantage. Viewed in this light, permission of such exercises
for those who want them is necessary if the schools are truly to be neutral in
the matter of religion. And a refusal to permit religious exercises thus is
seen, not as the realization of state neutrality, but rather as the
establishment of a religion of secularism, or at the least, as government
support of the beliefs of those who think that religious exercises should be
conducted only in private. . . It may well be, as has been argued to us, that even
the supposed benefits to be derived from noncoercive religious exercises in
public schools are incommensurate with the administrative problems which they
would create. The choice involved, however, is one for each local community and
its school board, and not for this Court. For, as I have said, religious
exercises are not constitutionally invalid if they simply reflect differences
which exist in the [374 U.S. 203, 318] society from
which the school draws its pupils. They become constitutionally invalid only if
their administration places the sanction of secular authority behind one or more
particular religious or irreligious beliefs. To
be specific, it seems to me clear that certain types of exercises would present
situations in which no possibility of coercion on the part of secular officials
could be claimed to exist. Thus, if such exercises were held either before or
after the official school day, or if the school schedule were such that
participation were merely one among a number of desirable alternatives, 6
it could hardly be contended that the exercises did anything more than to
provide an opportunity for the voluntary expression of religious belief. On the
other hand, a law which provided for religious exercises during the school day
and which contained no excusal provision would obviously be unconstitutionally
coercive upon those who did not wish to participate. And even under a law
containing an excusal provision, if the exercises were held during the school
day, and no equally desirable alternative were provided by the school
authorities, the likelihood that children might be under at least some
psychological compulsion to participate would be great. In a case such as the
latter, however, I think we would err if we assumed such coercion in the absence
of any evidence. . . What
our Constitution indispensably protects is the freedom of each of us, be he Jew
or Agnostic, Christian or [374 U.S. 203,
320] Atheist,
Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to
pray or keep silent, according to his own conscience, uncoerced and unrestrained
by government. It is conceivable that these school boards, or even all school
boards, might eventually find it impossible to administer a system of religious
exercises during school hours in such a way as to meet this constitutional
standard - in such a way as completely to free from any kind of official
coercion those who do not affirmatively want to participate. 8
But I think we must not assume that school boards so lack the qualities of
inventiveness and good will as to make impossible the achievement of that goal. I would remand both cases for further hearings. |
