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From these findings, the conclusions of law were ineluctable. The practices in question violated both the free-exercise and establishment clauses of the First Amendment, applied to the states through the Fourteenth. While the case was pending on appeal to the Supreme Court, however, the Pennsylvania legislature amended the statute to provide: "Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian." In light of the amendment, the Supreme Court remanded the case to the trial court for further proceedings.* The trial court permitted the amendment of the plaintiffs' pleadings." After rehearing the court amended its findings of fact to reveal that the children were free to abstain from participation in the Bible-reading and amended its conclusion of law to rest the invalidity of the statute solely upon the establishment provision."

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The record also revealed that the practice in the Abington Township schools having loud-speaker systems was to broadcast the Bible-reading and prayers throughout the classrooms; 40 that students chosen for the purpose could read any ten verses they preferred; that the only Bible distributed to the teachers for this purpose was the King James version of the Bible; that students excused pursuant to the statute were required to spend the time in the hallways outside their home classrooms while the reading and prayer session was conducted. In each of its opinions the trial court relied principally upon McCollum v. Board of Education."

C. Murray V. Curlett

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Like Engel and unlike Schempp, Murray v. Curlett came to the Supreme Court through a state court system. The facts were essentially the same as in the Schempp case, except that the petitioners, mother and son, alleged that they were atheists. In Baltimore, as in Pennsylvania, as a result of the action taken by petitioners the governing rule was amended to provide that students may be excused from opening exercises that consisted of reading from the Bible and reciting the Lord's Prayer.

The Maryland Court of Appeals divided four to three on the question, stated by the majority thus: "whether the daily opening exercises of the Baltimore City public schools-wherein the Holy Bible is read and the Lord's Prayer is recited-violate the constitutional rights of a student and his mother who claim they are atheists." "3 The majority answered the question in the negative, relying principally on Zorach and on cases decided by other state courts, including Engel v. Vitale. The more persuasive minority opinion by Chief Judge Brune reached the opposite conclusion on a reading of Everson, McCollum, and Torcaso v. Watkins." With some prescience, Chief Judge Brune anticipated that the decision in Engel, which was then pending in the Supreme Court, "will be determinative of this [case]."' 45

A. Engel v. Vitale

II. THE SUPREME COURT'S OPINIONS

By the time the Engel case was presented to the Supreme Court for decision, the arguments had been reduced to a small number, and the issues were posed in extremely general terms. Although the petition for certiorari had kept open the possibility of urging violation of the freedom clause in accordance with the position taken by the dissenters in the Court of Appeals, by the time the brief on the merits was presented, only the establishment issue was argued." The primary authority relied upon by the petitioners was McCollum. The respondents rested largely on the long-continued existence of the practice of prayer in public places and on Zorach. Under the circumstances one might

PA. STAT. ANN. tit. 24, § 15-1516 (Purdon's 1962).

364 U.S. 298 (1960).

195 F. Supp. 518 (E.D. Pa. 1961).

3201 F. Supp. 815, 820 (E.D. Pa. 1962). The decision was rendered on Feb. 1, 1962, some months before the Engel case was decided by the Supreme Court.

40 Cf. Public Utilities Commission v. Pollak, 343 U.S. 451 (1952).

4333 U.S. 203 (1948).

42 228 Md. 239, 179 A.2d 698 (1962).

43 Id. at 241, 179 A.2d at 699.

"367 U.S. 488 (1961). See RELIGION, 107-8. It was the Maryland Court of Appeals that was reversed in that case, too.

45 228 Md. at 261, 179 A.2d at 710.

Petition for Certiorari, p. 4; Brief for Petitioners, p. 3, Engel v. Vitale, 370 U.S. 421 (1962).

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have anticipated that the Court would be required, at least, to reconcile the McCollum and Zorach cases. But the Court's opinions were as broad and general as the arguments and the opinions in the lower courts. The only thing left clear by the opinions was that, if the decisions of the past had failed to produce a governing principle, no remedy of that defect was to be found in Engel.

Mr. Justice Black's opinion for the Court was joined by the Chief Justice, and Justices Clark, Harlan, and Brennan. Mr. Justice Douglas wrote a concurring opinion, and Mr. Justice Stewart wrote a dissent. The reader gets an impression of the Justices of the majority walking on eggs and of the two minority Justices stamping after them.

The majority reached its conclusion without the citation of a single prior Supreme Court decision, except for a reference to the history of the First Amendment contained in Everson." History purported to be the main reliance of the Court. Black started with the proposition that the ceremony commanded by the Board of Education was a religious one:

"There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty." 48

He relied on a recitation of history to show that once government enters the business of prescribing prayers it invites the exercise of pressures from various groups within the community as to the content of such prayers. This kind of activity has been proved by history to be destructive of the public peace. And, like Father John Courtney Murray," Black thought that the First Amendment was framed for the preservation of the public peace by the avoidance of such contests. To prevent this evil, the Constitution forbade the coincidence of governmental and religious authority.

"By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. . . . The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office." 50

The Court rejected the notion that the absence of "compulsion" eliminated the problem:

"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 nonobserving 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. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. . . . The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate."

99 51

The Court also rejected the proposition that this required separation of church and state exhibited a hostility to religion :

"It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. . . . [The authors of the Bill of Rights] knew that the First Amendment, which tried to put an end to governmental control of religion

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and of prayer, was not written to destroy either. . . . It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance." 52

The de minimus notion was similarly treated by reference to Madison's Memorial and Remonstrance against Religious Assessments.53 And the parade of horribles that suggested that the use of the word "God" in public activities was within the ban stated in the opinion was disposed of by a footnote: "Such partiotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance." 54

The majority opinion thus dealt with every argument raised by respondents or by the courts below in support of the Regents' prayer ceremony except that which rested on Zorach. As to the relevance or vitality of that case, the Court was completely silent.

The holding of the Court was, indeed, a narrow one:

"[T]he constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country 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.'

* 59

1957

1955

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It was the concurring and dissenting opinions that read into the Court's judgment a breadth and effect that the Court specifically disavowed. And it was this reading that was accepted by the divines as an appropriate target for criticism.50 Mr. Justice Douglas' concurring opinion gave new meaning to the proposition: "Millions for defense but not one cent for tribute." As he not infrequently does in other complex cases, he found the problem simple of statement and equally simple of solution: "The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing." Unlike Black, he found "no element of compulsion or coercion in New York's regulation. . . This was consistent with the opinion he wrote for the Court in Zorach, but Zorach was not used to bolster this conclusion. Nor was it distinguished in any way. Zorach was cited only for its famed, troublemaking, and essentially meaningless statement: "We are a religious people whose institutions presuppose a Supreme Being." He did distinguish McCollum on this score. For in that case "the influence of the teaching staff was... brought to bear on the student body, to support the instilling of religious principles." " Indeed, the only case that he thought to stand in the way of his conclusion was Everson "which allowed taxpayers' money to be used to pay 'the bus fares of parochial school pupils as a part of a general program under which' the fares of pupils attending public and other schools were also paid." This statement of the facts of Everson is erroneous, for there was no such "general program" involved in Everson, but the error is unimportant to Douglas' thesis. The appropriate principle that he stated in a footnote is not inconsistent with any thing that Black said. "The First Amendment ... prevented secular sanction to any religious ceremony, dogma, or rite." But the guiding principle of his opinion is both narrower and broader: not one cent of the taxpayers' money may be used for or given to any activity or institution connected with religion. This comes closer to non-judicial statements by Douglas than to any principle or judgment enunciated by the Court, except that in the dissenting opinion of Mr. Justice Rutledge in the Everson case which Douglas quoted in his Engel opinion." Douglas, like some of the Court's critics, would seem to have been more concerned with the problem of federal aid to parochial education than with the facts of the case immediately before him.

63

ta Id. at 433-35.

Id. at 436.

Id. at 435, n. 21.

5 Id. at 425.

61

See text at notes 3-5 supra.

370 U.S. at 437.

Id. at 438.

59 343 U.S. at 313, quoted 370 U.S. at 442.

60 370 U.S. at 439.

01 Id. at 443.

See RELIGION, 80-85.

63 370 U.S. at 442, n. 7.

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Id. at 443-44. It is interesting to note that Douglas found this proposition unconvincing in Everson, in which he was a crucial member of the majority.

His extra-judicial conclusions, stated in terms not dissimilar to his language in Engel, was that any such aid would be unconstitutional.

Mr. Justice Stewart's dissent rested on the proposition that the Court's judgment infringed the rights of the majority: "to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."" He thus attributed to the Court the decision of a much harder case than that with which it was presented. His proposition assumed that the prayer ceremony was initiated by the children or their parents rather than being imposed by the Board of Education. In any event, reading the opinion of the Court as broadly as did Douglas, Stewart found it inconsistent with the quotation from Zorach, which means all things to all men, and to Stewart a justification for state-sponsored religious ceremonies. B. Schempp and Murray

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Whether because of the uproar that followed the Engel case, as suggested by Anthony Lewis, or because of a recognition that the issues deserve more explication than Engel afforded, the Schempp* decision called forth five different opinions and more than one hnudred pages of explanation. It might have been the better part of wisdom had the Court taken the hint given by Chief Judge Brune and simply affirmed Schempp and reversed Murray per curiam on the authority of Engel. Certainly the Court did not, by its opinions, avoid the criticism that was necessarily forthcoming. Critics of this sort, as the Court well knows, don't read the opinions. Nor, unfortunately, do the opinions in Schempp spread light where Engel had left only darkness. The opinions do reveal a groping for doctrine that should be applied, but it cannot be said that the search has been crowned with success.

1. The Court's opinion.—The opinion of the Court was written by Mr. Justice Clark, and all the other members of the Court concurred, except Mr. Justice Stewart, who adhered to the position he took in Engel. After stating the facts, Mr. Justice Clark paid homage to the proposition that religion is an integral part of American life and history: Not only are we a church-affiliated people, but the Founders were believers in God; moreover, the Congress and the Court open their sessions with prayer, and our armed forces and other public agencies maintain chaplains. But, Mr. Justice Clark added, we are also a people devoted to religious freedom.

The Justice then announced the notion of "neutrality" that he derived from "Judge Alphonzo Taft, father of the revered Chief Justice," " who stated in an unpublished opinion: "The government is neutral, and, while protecting all [religions], it prefers none, and it disparages none."" But, before applying this general proposition to the facts before the Court, Clark undertook to restate two principles that the Court had announced in past decisions. First, he said, the Court has clearly accepted the proposition that the religion clauses of the First Amendment are applicable to the states through the Fourteenth. Second, it is clear that the Court has rejected the notion that the establishment clause forbids only the preference of one religion over another.” In emphasizing these points he was obviously directing himself to outside critics, for no party to these cases put these propositions in issue.

72

The opinion takes a peculiar turn at this point. Part IV consists of quotations from several Supreme Court decisions presumably touching on "the interrelationship of the Establishment and Free Exercise Clauses. . . .” The quota

See HUTCHINS, TWO FACES OF FEDERALISM 58-60 (1961).

66 370 U.S. at 445.

67 The distinction was recognized even by the New York American Legion. At its 1962 State convention, it passed a resolution stating: "It is manifestly clear that a prayer chosen by the pupils or their parents and voluntarily recited by them at the beginning of each school day is not a procedure coming within the prohibition of [the Court's] decision or the First Amendment to the Constitution." Certainly it is not "manifestly clear." But it presents a different problem from that resolved by the Court in Engel.

Lewis, Public Mood Plays Big Role in Court Rulings, N.Y. Times, June 23, 1963, § 4. p. 4, col. 1: "Few cases in recent years have produced so emotional a reaction from the public as did the Regents' prayer decision last year, or such violent attacks on the Justices. The Court, for its part, has seldom shown awareness of public opinion more plainly than in its handling of the new prayer cases that came down this week."

6 Hereafter both Schempp and Murray will generally be referred to collectively as Schempp.

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tions are from Cantwell," Everson," McCollum," Zorach," McGowan," Torcaso,so and Engel. The facts of the cases are ignored, perhaps to the end that their holdings need not be reconciled. The language quoted supports the proposition that the Court adheres to a notion of separation of church and state; it does not indicate the proper relationship between the two clauses. The conclusion would seem to be that both clauses point to a principle of neutrality; in this regard, they "may overlap."

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The opinion next sets forth the standard appropriate to the establishment clause:

"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 [sic] 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 mus be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." 3

This assertion necessarily raises the question: If the establishment clause is concerned with protecting against both "advancement" and "inhibition" of religion, what is the function of the free-exercise clause? For it is clear, in the opinions of the Court, that the two, although overlapping, serve distinct functions. Unfortunately, Mr. Justice Clark's answer is confusing:

"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." 84

85

Having come close to announcing the purpose of the establishment clause to be the same that Religion and the Law finds in both clauses read together, Clark then confounded the matter by speaking of the free-exercise clause as accomplishing the same end in a different manner. Apparently only the establishment clause precludes the "advancement of religion." But both clauses, according to Mr. Justice Clark, prohibit inhibition of religious activity: The free-exercise clause prohibits it by precluding the use of coercion; the establishment clause, by restricting some undefined non-coercive methods."

86

From this point on, however, the opinion has clear sailing. The recitation of the Lord's Prayer and Bible-reading are religious exercises sponsored by the state and, under the principle announced, are necessarily violative of the establishment clause. Zorach is distinguished:

"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

75 Cantwell v. Connecticut, 310 U.S. 296 (1940). See RELIGION, 51-54.

78 Everson v. Board of Education, 330 U.S. 1 (1947). McCollum v. Board of Education, 333 U.S. 203 (1948).

78 Zorach v. Clauson, 343 U.S. 306 (1952).

See RELIGION, 80-85.

McGowan v. Maryland, 366 U.S. 420 (1961). See RELIGION, 97-106.

80 Torcaso v. Watkins, 367 U.S. 488 (1961).

81 Engel v. Vitale, 370 U.S. 421 (1962).

See Kurland, The Regents' Prayer Case: "Full of Sound and Fury, Signifying..." [1962] SUP. CT. REV. 1. 82 83 Sup. Ct. at 1571.

83 Ibid. Cf. RELIGION, 17-18: "The utilization or application of these clauses in conjunction is difficult. For if the command is that inhibitions not be placed by the state on religious activity, it is equally forbidden the state to confer favors upon religious activity. These commands would be impossible of effectuation unless they are read together as creating a doctrine more akin to the reading of the equal protection clause than to the due process clause, i.e., they must be read to mean that religion may not be used as a basis for classification for purposes of governmental action, whether that action be the conferring of rights or privileges or the imposition of duties or obligations.

"[T]he thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to Impose a burden." Also see id. at 112.

84 83 Sup. Ct. at 1572.

8 See note 83 supra.

83 Sup. Ct. at 1571-72.

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