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PAGE 2 GEORGIA BULLETIN THURSDAY, JUNE 20, 1963 8-1 DECISION School Prayer Ruling Extract With Seperate Opinions WASHINGTON, D.C. (RNS)— The United States Supreme Court ruled here that the reci tation of the Lord'* Prayer in the opening exercise of a public school is a "religious cere mony" and as such is unconsti tutional under the First Amend ment to the Constitution which forbids "establishment" of re ligion. It also held that a state law in Pennsylvania requiring the daily reading of passages from the Bible without comment in public school classrooms is unconstitutional for the same reason. The Lord's Prayer rul ing involved a practice of pub lic schools in Maryland which also conducted Bible-readings. THE Court's decision in both cases was 8 to 1, with Justice Potter Stewart voicing the lone dissent, Just as he did in 1962 when the Court struck down the so-called Regents' Prayer used in the opening exercises of New York public schools. 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Black — who wrote the opinion in the New York school prayer case — and Associate Justice Byron White fully concurred with him. JUSTICE William J. Brennan, Jr., the only Roman Catholic member, delivered a separate concurring opinion nearly 25,000 words in length. Justice Arthur J. Goldberg, the only Jewish member, with whom Justice John Marshall Harlan joined, also delivered a separate concurring opinion, but it was brief, a little more than 1,000 words long. Justice William 0. Douglas again voiced his very strong personal views on Church-State separation in a short separate opinion. Justice Stewart delivered a 4,000 word dissent in which he did not actually disagree with the findings of the Court's ma jority but said he thought the issues were so complicated that the cases should be remanded to the lower courts "for the taking of additional evidence." THE OPINION OF THE COURT: Justice Clark in delivering the opinion of the Court said that the Constitution requires the government to be absolute ly neutral with respect to the religious beliefs erf its citi zens. "The place of religion in our society is an exalted one," he declared, "achieved through a long tradition of reliance on the home, the church, and the in violable citadel of the individual heart and mind." "We have come to recognize through bitter experience that IGNATIUS HOUSE RETREATS Schedule fo next six weeks June 27-30 Women July H-14 Men July 18-21 Women July 25-28 Women August 1-4 Men August 8-11 Women Phone 255-0503 or Write 6700 Riverside Dr. N. W. Atlanta b, G*. Where Insurance is a Profession, Not a Sideline SUTTER & McLELLAN Mortgage Guarantee Bldg. JA 5-2086 it is not within the power of government to invade that cita del," he warned, "whether its purpose or effect is to aid or oppose, to advocate or retard." "In the relationship between man and religion, the state is firmly committed to a position of neutrality," Justice Clark stated. "Though the application of that rule requires interpreta tion of a delicate sort," he ob served, "the rule itself is clearly and concisely stated in the words of the First Amend ment." Applying that rule to the cases at hand, Mr. Clark said the Court affirmed the opinion of the Federal District Court in Philadelphia that the Pennsyl vania Bible-reading law vio lates the Constitution, and re versed the opinion of the Mary land State Court of Appeals which had upheld both Bible Reading and recitation of the Lord's Prayer in Maryland's public schools. The latter case was remanded to the Maryland court with instructions for fur ther proceedings consistent with the opinion of the U. S. Supreme Court as to the Con stitutional rights of the appel lants. COURT 'NOT HOSTILE’ TO RELIGION: Justice Clark went to some length to insist that the Court is not hostile to religion. "It is argued," he said, "that unless these religious exer cises 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 be lieve in no religion over those who do believe.’ " (The latter quotation is taken from Zorach vs. Clausen and has frequently been quoted in Church-State controversies.) "We do not agree, however, that this decision in any sense has that effect," said Justice Clark. "In addition," he said, "it might well be said that one’s education is incomplete without a study of comparative religion or the history of religion and its relationship to the advance ment of civilization. It cer tainly may be said that the Bible is worthy of study for its history and historic qualities." "Nothing we have said here", he emphasized, "indicates that such study of the Bible or of re ligion, when presented objec tively as part of a secular pro gram of education, may not be effected consistent with the First Amendment." "But the exercises here do not fall into these categories," he asserted. "They are reli gious exercises required by the states in violation of the command of the First Amend ment that the government main tain strict neutrality, neither aiding nor opposing religion." FREE EXERCISE ‘NOT VIO LATED': Justice Clark said that the Court does not agree that the concept of neutrality reqiured by the First Amendment — which prohibits the state from requiring a religious exercise "even with the consent of a ma jority of those involved" — collides with the right of the majority to "free exercise of religion** which is also pro tected by the First Amendment. “While the free exercise clause clearly prohibits the use of state action to deny the rights of free exercise to any one," said Mr. Clark, "it has never meant that the majority could use the machinery of the state to practice its beliefs.*’ He said that this contention had been effectively answered by the late Justice Robert H. Jackson in 1943 when the Su preme Court held that West Virginia could not violate the religious beliefs of Jehovah's Witnesses by forcing their children to salute the flag. "The very purpose of the bill of right*," Justice Jackson said in that case, "is to withdraw certain subjects from the vi cissitudes of politics or place them beyond the reach of offi cials...One's right to freedom of worship...or other funda mental rights — may not be submitted to vote." Justice Clark reviewed the facts in each case and said the Court could come to no con clusion other than that the prac tices of which complaint was made were "religious exercis es" and were so intended by the state legislatures which com manded them. The Pennsylvania case was brought by Edward Lewis Schempp, his wife, Sidney, and their three children, members of the Unitarian church of Ger mantown, Pa., against the school district of Abingdon Township. Each morning between 8:15 and 8:30 a.m., while students at Abingdon High School are in their home rooms, opening ex ercises pursuant to state law are held. They include a read ing by one of the students of 10 verses of the Bible carried by radio to each of the rooms. This is followed by the recita tion of the Lord's Prayer over the loudspeaker system with students in each classroom ask ed to stand and join in the reci tation. These exercises close with a salute to the Flag and announce ments of interest to the stu dents. The Court noted that parti cipation is voluntary and that the student reading the Bible verses may select any version he prefers and any passage he chooses — "although the only copies furnished by the school are the King James Version, copies of which are circulated to each teacher by the school district." "During the period in which the exercises have been con ducted, the King James, the Douay, and the Revised Stan dard Version of the Bibles have been used, as well as the Jew ish Holy Scriptures,’* Justice Clark observed. "There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no in terpretations given at or during the exercises," he pointed out. "The students and parents are advised that the student may absent himself from the class room or, should he elect to re main, not participate in the ex ercises." Justice Clark noted, however, the expert testimony taken in the Federal District Court as to the sectarian differences in the va rious versions of the Bible. He quoted the testimony of Bible experts on this point. The Maryland case was brought by Mrs. Madalyn Mur ray on behalf of her son, Wil liam J. Murray, whom Mr. Clark described as "both pro fessed atheists." They objected to practices in the Maryland schools which were almost identical, except that the Bible readings were always from the King James Version and usual ly were read by the teacher, who then led the classroom group in the Lord’s Prayer in the King James Version. In analyzing the reasons why the Court found these practices unconstitutional, Justice Clark conceded that "it is true that religion has been closely iden tified with our history and gov ernment." "The fact that our Founding Fathers believed devotedly that there was a God and that the inalienable rights of man were rooted in him is clearly evi denced in their writings from the Mayflower Compact to the Constitution itself,” he said. He declared this background is evidenced today in the inclu sion of oaths for public office "from the Presidency to al derman of the final supplica tion ‘So Help Me God.’ ” Justice Clark also referred to the opening of Congressional sessions with prayer and to the presence of chaplains in the armed forces so that those citi zens who "are under the re strictions of military service" and who wish to engage in "vo luntary worship" may do so. But religious freedom has likewise "been strongly im bedded in our public and pri vate life," he said. THE COURT'S REASONING EXPLAINED: "First, this Court has de cisively settled that the First Amendment's mandate that ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof' has been made wholly applicable to the states by the 14th Amendment," said Justice Clark, explaining the legal basis for the decision, which holds that state legisla tures, in the words of the late Justice Owen J. Roberts, "are as impotent as the Congress to enact such laws." "Second, this Court has re jected unequivocally the con tention that the establishment clause forbids only governmen tal preference of one religion over another," Justice Clark declared, citing again what has come to be known as the "Ev erson Distum" that "neither a state nor the federal govern ment can set up a Church... Neither can pass laws which aid one religion, aid all reli gions, or prefer one religion over another." (This quotation, taken from the Everson Case (1947) in which the Supreme Court up held, 5-4, legality of public school bus transportation of parochial students, is frequent ly quoted in Church-State legal controversies.) After extended quotations from all the pertinent cases in which the Supreme Court has interpreted the First Amend ment, including McCollum and Zorach, which dealt with re- leased-time religious educa tion, McGown vs. Maryland, which uphled the validity of Sunday laws, and Engel vs. Vi tale, in which the New York Regents* Prayer was struck down, Justice Clark delivered the basic findings of the Court: "The wholesome ‘neutrality* of which this Court's cases speak stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of govern mental and religious functions or a concert or dependency of one upon the other to the end that the official support of state or federal government would be placed behind the tenets of one or of all orthodoxies. "This the establishment clause prohibits. "And a futher reasonfor neu trality is found in the free ex ercise clause, which recognizes the value of religious training, teaching, and observance, and, most particularly, the right of every person to freely choose his own course with reference thereto free from any compul sion by the state. "This the free exercise clause guarantees. "As we have seen, the two clauses may overlap. This Court has interpreted the First Amendment eight times in the last 20 years and has held con sistently, with only one justice dissenting on the point. (The reference is apparently to Jus tice Stewart). It has consistent ly held that the clause with drew all legislative powers re specting religious belief or the expression thereof. "The test may be stated as follows: What are the purpose and the primary effect of the enactment?*’ He suggested that the con flict can be resolved by requir ing that "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 re ligion." But, significantly, the Court held that while coercion is re quired to establish a violation of the free exercise clause, the establishment clause can be violated without a showing of coercion. Justice Clark then proceed ed to deliver the judgment of the Court that "the trial court in Schemmp vs. Abingdon has found that such an opening ex ercise is a religious ceremony and was intended by the state (of Pennsylvania) to be so. We agree to the trial court'* find ings as to the religious charac ter 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 cha racter of the exercises in Mur ray vs . Maryland," Justice Clark said, "and the state con tends that the program is an effort to extend its benefits to all public school children with out regard to their religious belief..The shortanswer..would be that the religious character of the exercise was admitted by the state. But even if its purpose is not strictly reli gious, it is sought to be ac complished through readings without comment from the Bible. "Surely, the place of the Bible as an instrument of re ligion cannot be gainsaid, and the state’s recognition of the prevadlng religious character of the ceremony is evident from the rule's specific permission of the alternative use of the Ca tholic Douay Version, as well as a recent amendment per mitting non-attendance at the exercises. "None of these factors is con sistent with the contention that the Bible is here used either as an instrument for non-reli gious moral inspiration or as a reference for the teaching of secular subjects. "The conclusion follows that in both cases, thestatelaws re quire religious exercises and such exercises are being con ducted in direct violation of the rights of the petitioners. "Nor are these required ex ercises mitigated by the fact that individual students may ab sent themselves upon parental request. That fact furnishes no defense to a claim of unconstinationali ty under the establishment, clause. "The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and«..*it is proper to take alarm at the first en croachment upon our liber ties*. ’’ JUSTICE STEWART'S DIS SENT: In the lone dissent, Justice Potter Stewart said, "I think the records of the two cases be fore us are so fundamentally deficient as to make impossible an informed or responsible de termination of the Constitution al issues involved." "Specifically, I cannot agree that on these records we can say that the establishment clause has necessarily been violated," he said, adding that the conflicts between the es tablishment clause and free exercise clause were such, in his mind, as to require re manding the cases to the lower courts for the taking of more specific evidence on the points of issue. In discussing his difficulties in resolving these problems, Justice Stewart said: "A single obvious example would suffice to make the point. Spending federal funds to em ploy 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 govern ment which did not provide him the opportunity for pastoral gui dance was affirmatively prohi biting the free exercise of his religion." "There is involved in these cases a substantial free exer cise claim on the part of those who affirmatively desire to have their children’s school day open with the reading of a passage from the Bible," Justice Ste ward declared. He said he believes the de cision of the Court will damage religious belief of American school children. "For a compulsory state edu cational system so structures* child's life that if religious ex ercises are held to be an im permissible activity in schools, religion is placed at an artifi cial and state-created disad vantage," he protested. "Viewed in this light, per mission of such exercises for those who want them is neces sary if the schools are truly to be neutral in the matter of religion," Justice Stewart said. "And a refusal to permit reli gious exercises thus is seen, not as the realization of state neu trality, but rather as the estab lishment of a religion of secu larism, or, at the least, of go vernment support of the beliefs of those who think that religious exercises should be conducted only in private." Justice Stewart said he was prepared to agree with the Court's decision in the Mary land case if, in fact, only the King James Version of the Bible was read and only the Lord's Prayer was used, since it is a sectarian prayer. But, he said, even though he believed Mary land's practice might violate the establishment clause, he felt that the case should be return ed for the taking of more evi dence on the other issues in volved. "In the absence of coercion upon those who do not wish to participate — because they hold less strong beliefs, other be liefs, or no beliefs at all—such provisions cannot be held, in my view, to represent the type of support of religion barred by the establishment clause," he declared. JUSTICE GOLDBERG’S OPIN ION: Justice Arthur J. Goldberg, with whom Justice John Mar shall Harlan joined, concurred in the result but warned that the Constitution must not be interpreted in a manner hos tile to religion. “It is said, and I agree," said Justice Goldberg, "thatthe attitude of the state toward re ligion must be one of neutra lity. But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of the non-interference or non-involvement with reli gion which the Constitution com mands, but of a broader and persuasive devotion to the secu lar and a passive — even ac tive — hostility toward reli gion." Such hostility is "not only not compelled by the Constitution," said Justice Goldberg, "but it seems to me Is prohibited by it." "Neither the state nor this Court can or should ignore the significance of the fact that a vast portion of our people be lieve in and worship God and that many of our legal, politi cal, and personal values de rive historically from religious teachings," he declared. "Go vernment must inevitably take cognizance of the existence of religion and indeed, under cer tain circumstances, the First Amendment may require that it do so." He said he thought the Court should affirmatively recognize the "propriety of supplying mi litary chaplains" and the Con stitutionality of “teaching about religion as distinguished from the teaching of religion in the public schools,** Justice Goldberg warned, however, that the practices of Maryland and Pennsylvania in volved sectarianism to a degree that arouse "the very divisive influences and inhibitions of freedom which both religion clauses of the First Amend ment preclude." The states used their laws and facilities, he said, to en gage in "unmistakably reli gious exercises." He said he found nothing in the decision of the Court which goes beyond the mere finding that prescribing prayer and Bible reading as religious exercises in the school is beyond the au thority of the state. “Today's decision does not mean that all incidents of go vernment which import of the religious are therefore banned by the establishment clause," he observed. Justice Goldberg went on to say, “The First Amendment does not prohibit practices which by any realistic mea sure create none of the dang ers which it is designed to pre vent and which do not so direc tly and substantially involve the state in religious exer cises or in the favoring of re ligion as to have meaningful and practical import." "It is, of course, true that great consequences can grow from small beginnings, but the measure of Constitutional ad judication is the ability and CONTINUED FROM PAGE 8 Day Pilgrimage & Tour from Chicago (Escorted) to Our Lady of the Cape St. Anne de Beaupre St. Joseph Oratory Province of Quebec, Canada from Chicago via Air Conditioned Bui, Alio included in the above a tour of: Ottawa, Montreal, Quebec City, and Detroit. Bolton, New York & Washington, D.C. Dates of Departure: June thru Oct., 1963 Week-End pilgrimage tour* to Our Lady of the Snows, Belleville, Illinois. Write for brochure for complete details to: ST. JUDE & ST. 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