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On this day, by an 8-1 vote (Potter Stewart dissenting) the Supreme Court of the United States issued ABINGTON SCHOOL DIST. v. SCHEMPP, 374 U.S. 203.  The opinion was written by Justice Tom Clark, who retired from the Court when his son Ramsey was appointed Attorney General of the United States by Lyndon Baines Johnson.

Pennsylvania law required the reading of 10 bible verses each morning, along with the recitation of the Pledge of Allegiance.  In schools with a loudspeaker system all students heard the same verses.  In those without the teacher picked the verses.  They were read without commentary, and were from the Revised Standard, King James, or Doai Bibles.  this was often followed immediately by recitiatio of the Lords' Prayer, which is a New Testament text, in lieu of other Bible verses.  There was no restriction as to the part of the Bible from which the texts could be taken, although I seriously doubt one could find examples of citation from Song of Songs, with verses like "Let him kiss me with the kisses of his mouth: for thy love is better than wine."

The law informed parents and students that those who did not want to participate could leave the room.  

The school district in question, Abingdon, is in Montgomery County PA, just North of the City of Philadelphia.  The Schempff family, one behalf of whose children the case was brought, attended a Unitarian Universalist Church in Philadelphia.  They won their case in District Court, and in a unanimous 3-judge Panel in the 3rd Circuit before the School District appealed to the Supreme Court.  The decision was issued on Monday June 16, exactly one week before I graduated from high school 50 years ago.

The case was heard twice at trial. Originally the law did not have a provision for excusing children from the ceremony.  After the first trial, while the case was on appeal, the Pennsylvania legislature changed the law allowing children to be exempt upon a written request from their parents.  The results of the trial were the same, and it is worth noting that the opinion by the District Court Judge was

The reading of the verses, even without comment, possesses a devotional and religious character and constitutes in effect a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord's Prayer. The fact that some pupils, or theoretically all pupils, might be excused from attendance at the exercises does not mitigate the obligatory nature of the ceremony for . . . Section 1516 . . . unequivocally requires the exercises to be held every school day in every school in the Commonwealth.
One of the precedents for this case was Engel v. Vitale, 370 U.S. 421 (1962), where a 6-2 Court (Steward, and White dissenting, and Frankfurter not participating) had ruled that the New York State Regents prayer - written by the Regents, the state board of education, was a clear violation of the no establishment clause.  Hugo Black's opinion for the Court said that it did not matter that students were not required to say the prayer and/or could be excused from the room, and that the prayer was non-denominational, it was still violative of the 1st Amendent provisions on religion.  Black wrote
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.
.  Immediately before issuing the judgment of the Court, White quoted words from the author of the First Amendment, from Madison's Memorial and Remonstrance against Religious Assessments:  
"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?"

Returning to the Abingdon v Schemff case, there is an important concurrence by Brennan which thoroughly explores the incorporation of the First Amendment's incorporation (through the 14th Amendment) against the states, the intent of the Founders in drafting the 1st Amendment and the intent of the 14th Amendment.  The 73 page concurrence laid out a good deal of the framework used by the Court in later cases involving church-state relations.

For my purpose, however, the focus is on what Clark wrote.  He cited the summaries of trial testimony noted by the District Court, against the law by one of the great Jewish scholars of the time, Solomon Grayzel, as well as on behalf of the law by Luther A. Weigle, justifying the selection of the King James and Revised Standard versions.  Worth noting about Weigle were these words:  

On direct examination, Dr. Weigle stated that the Bible was non-sectarian. He later stated that the phrase `non-sectarian' meant to him non-sectarian within the Christian faiths. Dr. Weigle stated that his definition of the Holy Bible would include the Jewish Holy Scriptures, but also stated that the `Holy Bible' would not be complete without the New Testament. He stated that the New Testament `conveyed the message of Christians.' In his opinion, reading of the Holy Scriptures to the exclusion of the New Testament would be a sectarian practice.
Here I note a foreshadowing of an argument often heard from the religious right that it is Christianity against which discrimination is being offered.

It is interesting looking back at the Warren Court to see how different a concept of America it had than the Courts under Rehnquist and now Roberts, that is, how unified the court was on some matters of the Bill of Rights and the 14th Amendment -   Gideon and Brown were unanimous, this case was 8-1.  

It is also important to note that this case, like Brown v Board, was actually more than one case -  combined with this was a case from Baltimore known as Murray v. Curlett, in which the son of Madelyn Murray O'Hair, founder of the American Atheist Association, also sued again the recitation of Bible verses.  The Maryland law required EITHER bible verses or recitation of the Lord's Prayer.  This case had been brought through the state Courts of Maryland before coming to the Supreme Court, and Maryland's highest court, the Court of Appeals, on a narrow vote, had found the practice constitutional.

In a time when one major political party seems to think this country needs to be defined as Christian in a way that would be offensive to many Christian denominations, it is perhaps worthwhile to examine both some of the argumentation on behalf of the school district, and how Justice Clark phrased his opinion.

And we should remember that for many on the religious right, this is the case that they blame for "throwing God out of our schools."

Brennan was not the only Justice who felt it important to trace the history of Court rulings on religion.  Clark's opinion thoroughly explored the prior cases leading to this, up to and including Engel.

Clark wrote

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.
  He noted that in 8 previous cases involving establishment in several score years there had been only 1 dissent to the consistent rulings by the Court.

In the concluding part of his opinion, Clark wrote

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.
That the Bible is worthy of study was something with which the Court did not disagree, but that did not justify the specific exercises being challenges, which were eligious 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.

Clark on behalf of the Court found that the requirement for neutrality as to religion in no way interfered with the free exercise rights of the religious majority.  He cites the well-written opinion by Robert Jackson in the Barnette case (about which I wrote here three days ago:  

"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."
He concludes  
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.
  On that basis the Court upheld the ruling of the 3rd Circuit in Abingdon, and vacated and returned to the Maryland Court of Appeals the Murray v Curlett case.

For half a century religious conservatives have argued that between Engel and Abingdon God was evicted from our public schools, which explains why the schools and American society have spiraled downward.

In fact, as instruments of the state schools must be neutral with respect to religion, as must the rest of our Governmental institutions.

As a teacher I make sure my students understand the history of the Court's rulings, which even through the Rehnquist Court (Santa Fe ISD coming to mind as a 6-3 decision) have remained consistent on this point.

From the Founders, while there was a respect for religion, there was a clear understanding that religion and government needed to be kept apart.  Jefferson was not alone, even if his "wall of separation" does not appear in the Constitutional material.  

America is becoming ever more diverse - by color, by ethnic background, and by religion.

This is reflected in a Congress that now has, besides Christians of various stripes and Jews, Buddhists, a Muslim and a Hindu.  

As time goes on we will almost certainly see federal elected officials who will openly declare themselves as agnostic, atheist, or merely a-religious.

Constitutionally there is no problem with that.

Societally, we perhaps should know our legal history to understand that.

I teach this cases.

I wonder why others do not.


Originally posted to teacherken on Mon Jun 17, 2013 at 04:32 AM PDT.

Also republished by Progressive Atheists.

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