Transcript of Oral Argument (February 27-28, 1963)
EDWARD LEWIS SCHEMPP, ET AL.,
Washington, D. C.
February 27-28, 1963.
The above-entitled cause came on for oral argument, pursuant to notice,
EARL WARREN, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
THOMAS C. CLARK, Associate Justice
JOHN M. HARLAN, Associate Justice
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice
BYRON R. WHITE, Associate Justice
ARTHUR J. GOLDBERG, Associate Justice
PHILIP H. WARD, III, ESQ., Montgomery, McCracken, Walker & Rhoads, on behalf of Appellants, No. 142.
HENRY W. SAWYER, III, ESQ., 1100 Philadelphia National Bank Building, Philadelphia 7, Pennsylvania, on behalf of Appellees, No. 142.
JOHN D. KILLIAN, Ill, ESQ., Deputy Attorney General of the State of Pennsylvania, State Capitol, Harrisburg, Pennsylvania, on behalf of Appellants, No. 142.
MR. CHIEF JUSTICE WARREN: Number 142, School District of Abington Township, Pennsylvania. et al., appellants, versus Edward Lewis Schempp, et al.
ORAL ARGUMENT BY
PHILIP H. WARD, III, ESQ.,
ON BEHALF OF APPELLANTS, NUMBER 142
MR. WARD: May it please the Court, the case is here on an appeal on the decision of a three-judge District Court that held Pennsylvania's Bible reading statute to be an unconstitutional establishment of religion. Now, this case is different from the case you have just heard because in Pennsylvania the Bible reading statute does not require that the Lord's Prayer be said; it has nothing to do with the Lord's Prayer. It is the practice at Abington Township, during the morning exercises, to follow the statutory Bible reading with the recitation of the Lord's Prayer. However, that is not the practice in all of Pennsylvania.
The decree that has enjoined Abington in this case—and the court below found that it was unconstitutional either to read the ten verses of the Bible pursuant to Pennsylvania's statute, either alone or in conjunction with the recitation of the Lord's Prayer. Consequently, the basic issue in my case is the constitutionality of reading ten verses of the Bible, without comment, to the school children of Pennsylvania. For if the Court finds that that practice is unconstitutional, it need not concern itself with the Lord's Prayer. And if it finds that practice is constitutional, the reading of the ten verses, but that following it with a recitation of the Lord's Prayer affects the constitutionality of the Bible reading, then of course it could frame a decree accordingly.
THE COURT: Does this come up on demurrer or—
MR. WARD: No, sir; there is a record in this case.
We also believe that this case is different from any of the cases, the church-state cases, this Court has heretofore considered. We think we have a novel factual situation here. We think the question presented for this Court for the first time is: What does the Constitution require us to do with an old tradition that has undoubted secular values, it's noncompulsory, but yet it in some ways reflects the religious origins of the country?
THE COURT: Well, is it—you say it's noncompulsory. Is there anyplace in the school that—I think this was said over a loud-speaker, wasn't it?
MR. WARD: Yes, Mr. Justice White.
THE COURT: Well, is there any place in the school you could go and not hear it?
MR. WARD: Actually there's nothing in the record because nobody asked to be excused. We could speculate—the public address system is piped into each room and you can turn off a button so that in one room will be no noise, but there's nothing in the record concerning it.
THE COURT: There never was any need to make provision for it?
MR. WARD: The question never arose.
We shall argue that the religious liberties of the Schempps, who are the appellees, the plaintiffs in this case, are not infringed; that this case doesn't concern the establishment of religion within the meaning of the Constitution, and that there is no requirement that Pennsylvania must give up an ancient custom simply because it involves the use of the Bible.
Now, this litigation started five years ago when the original complaint was filed. At that time, the Bible reading statute of Pennsylvania provided that ten verses of The Holy Bible had to be read at the opening of each school day; provided that it would be read by the teacher in charge; and it further provided that in the event the teacher refused to participate, he could be dismissed. The complaint filed by the Schempps under that statute said that the practice at Abington, reading the Bible according to the statute and following it with the recitation of the Lord's Prayer, violated their religious consciences and liberties, interfered with the rights of the parents to raise their children in the method of their own belief, and also practiced—the practice fostered contradictory beliefs. They sought an injunction against the reading of the Bible, followed by the Lord's Prayer.
Now, there was a trial held. We have a record in this case. A trial was held, and the three Schempp children, Roger, Ellory and Donna, testified that they had been compelled to attend Bible readings. They testified that many passages from the Bible read to them confused them, aggrieved them and taught them things which was contrary to their belief at home.
THE COURT: How old are these youngsters?
MR. WARD: The two—Roger—Ellory, who is the oldest, Mr. Justice Harlan, has graduated. He's about 21. But Roger and Donna, I think, are 17 and 19. But in any event, they are both presently at Abington High School, in the senior class.
In addition to the testimony of these children, we had the testimony of two experts—
THE COURT: [Inaudible]
MR. WARD: Sir?
THE COURT: These children are Unitarians?
MR. WARD: They are Unitarian.
We had the testimony of two experts who testified concerning the Bible pretty much as Your Honors would expect: that the Bible was a great document, that it was an old document, it comes from certain basic original sources; that it is a religious document in the sense that it has moral literary value. That Dr. Grayzel, who is an eminent Jewish theologian, testified that all of the New Testament and parts of the Old Testament would be, would offend the belief of the Jews.
As a result of that trial, the lower court, the three-judge court, found that the practice of reading the Bible pursuant to the old compulsory statute, followed by the saying of the Lord's Prayer, amounted to an establishment of religion because it said the Bible deals with man's relationship to God and that this daily reading is a daily reminder of that relationship, and that this daily reading indoctrinates the children and that consequently also the parents' rights were abridged. It said it violates free exercise in that Ellory and the children were forced to attend, and then it said that since the teachers had to read under pain of dismissal, they would try to get a large audience for the Bible reading to hear.
The main point, the main thrust—
THE COURT: I don't get the last—
MR. WARD: Well, you recall under the statute, as it then stood, it required that the teacher in charge read the Bible or cause it to be read, and any teacher who refused to participate could be disciplined and expelled. Therefore, in the lower court decision in the first case, which was the trial under that particular compulsory statute which contained that provision, the judge said since a teacher knows that he may be expelled, may be dismissed, it's to his advantage to assemble—convince the children to listen.
THE COURT: I don't get it, but I understand it.
MR. WARD: Now, what the court below meant was this: That since the teacher—the court reasoned that if the teacher knows that he must conduct this ceremony—I don't agree with what the court held, but this is what I understand them to say—if the teacher knows he is required to participate in the service, therefore he knows the State likes the service, therefore he is going to make certain the children are attentive and listen when the ceremony is conducted.
THE COURT: Well, all right; I hear you.
MR. WARD: Well, that's what the court—
THE COURT: The only thing I can make out of that is that maybe the teacher will have more witnesses to testify—
MR. WARD: And then in fact, there is no teacher complaining here; which I think is the short answer to the question.
THE COURT: [Inaudible]
MR. WARD: Thank you, Mr. Justice Goldberg; that is what I was trying to say, and that is what—
THE COURT: Well, there's no point in prolonging this, but I didn't note the statute said that the teacher not only had to read, but be enthusiastic about it.
MR. WARD: Well, they require enthusiasm in Abington.
But the essential part of the lower court's decision in the first, the compulsory statute, was, as I understand, the compulsion that every child had to attend. In other words, it was of concern then to what reading a certain passage from the Bible might be on a Jewish child's mind when he knew a Jewish child had to be there. And as a matter of fact, the eighth finding of fact of the first decision, which is page 194 of the record, was that as a matter of fact the children had to be present, they were compelled to be present at the Bible reading ceremony. So the decree held that the, the first decree held that we could not read the Bible pursuant to the statute or otherwise except that we always can use any book, this decree said, we can use any book we want in the schools of Abington as a source, as a material for study. In other words, they weren't banning the Bible per se from Abington. They mentioned nothing of the Lord's Prayer in the first decree.
Following this decree, we immediately filed notice of appeal with this Court. Prior to the time our jurisdictional statement was filed with this Court, the Legislature of Pennsylvania amended the Bible reading act to provide that any child could be excused from the Bible reading, from participating or being there, upon the written request of the parent or guardian, and also eliminated from the statute that particular language about the teacher having to be enthusiastic, as Mr. Justice Harlan said. That was stricken out.
We—this Court then, the Supreme Court, vacated the judgment and remanded our case back to the three-judge District Court for further action appropriate in light of the amendment to the Bible reading statute.
Thereafter, the three-judge court allowed the Schempps to amend their complaint by eliminating the name of Ellory, who had been graduated, and by simply substituting the new statute.
A trial was held under the amended statute, and at that trial the testimony was as follows: Mr. Schempp, the father, testified that he was familiar with the new excuse provision but that he had not elected to have his child, his children, excused because he thought if he did, if he asked for them to be excused, the other children would consider his children—"oddballs" was the word he used; different—I think "Communists" or "immoral"; the words are in the record—but in any event, different.
THE COURT: So the fact is he did not ask to have his children excused.
MR. WARD: No, he did not. He testified that he—
THE COURT: And we don't know, therefore, what effect, if any, there would have been—
MR. WARD: No—
THE COURT: —had he done so.
THE COURT: Well, that's his subjective prophecy—
THE COURT: Exactly, and that's all we have, isn't it?
MR. WARD: That's all we have on it.
He also described what he said were the mechanics of Bible reading at Abington. He described how it worked, but he admitted that he had never been there, he had never talked to the teacher about it; he had never talked about the excuse provision. His son Roger followed him to the stand and said that his father had correctly described the practice at Abington.
Over the objections of Abington, the appellants, the court also admitted into this second trial all of the evidence that had been taken in the first trial under the compulsory statute. We believed then and we believe now that testimony concerning a compulsory statute that a child has to listen has no effect and is irrelevant in a trial where a child may absent himself. But we —the issues in this Bible case transcend any problems of admissibility of evidence, so we do not make that argument now.
As a result of the second trial, the lower court's decision was that the amended statute—and that is, as you'll recall, the statute that requires, provides for the excuse—was an establishment of religion. It said that Bible reading, followed by the Lord's Prayer, is devotional. It said that the excuse is no help because the practice is still held every day; that the Bible is a Christian document. It didn't—the court's decision with which we are now appealing did not deal with the free exercise clause because it said it was unnecessary to pass on the contentions of the Schempps concerning free exercise because we find this is an establishment of religion.
It said that this case is really governed—falls right within McCollum; that the facts are essentially the same. And the decree that was issued enjoins us, as I have said, from reading the Bible pursuant to the statute, either in conjunction with or not in conjunction with saying the Lord's Prayer.
The decree also says that we can use any book in the schools, of a religious sort, for an educational source.
Appeal was filed; the probable jurisdiction noted; and we are here today.
THE COURT: Did that injunction go into effect?
MR. WARD: No; we obtained a stay until the action of this Court.
What is this Bible reading practice —
MR. WARD: The—in the second decision—
THE COURT: Which is before us now.
MR. WARD: —before us now, the court said it need not pass on the free exercise, the contentions made on the free exercise, because we find that this is a violation of the establishment clause.
Now, what is this particular practice with which the Schempps, to which they object? Now, although the public school Bible reading practice in Pennsylvania is an old one—we know from the records that it was old in the 1860's—it first became statutory in 1913, and the amendment to that act said the purpose of the statute was to bring lessons in morality to the school children during their school day. Since that time, it's been continuously required by statute. At Abington, this is the way it works: between 8:15 and 8:30 on every school day, all the children are in their home-rooms, advisory sections. There's a public address system in each of their rooms. At 8:15, the morning exercise starts. First they have what's called an introduction, a fact for the day. They pull something out of The World Almanac to gain the attention of the children—Mt. Everest is 29,000 feet high, something like that—to get them thinking. This is followed by ten verses of the Bible, read without comment.
THE COURT: The Almanac comes first.
MR. WARD: The Almanac comes first; it's an attention getter. This is followed by ten—
THE COURT: A loss leader, I guess.
MR. WARD: Sir?
This is followed, the ten verses of the Bible is followed by the Lord's Prayer; which in turn is followed by the flag salute; which in turn is followed by the school announcement for the day—the botany class will meet in room A instead of room B. Then you have a conclusion at which they announce the children who have read the preceding announcements.
These announcements, this reading, the fact for the day, the Bible, the prayer, are done by the children of the, the students of the television and radio workshop, which is a regular course of the English department at Abington. There are about 30 students in this course, and it's voluntary.
The Bibles that these children, the students read—excuse me—the Abington only supplies one Bible. it purchases one Bible, which is the King James version. These students who read the Bible in this course, the 30 people, are encouraged to read their own Bibles. And the record shows the testimony to the effect that the King James version has been read, the Revised Standard version has been read, the Jewish Holy Scriptures have been read, and the Douay version has been read. The selection of the verses to be read is completely up to the child.
This is the practice that the Schempps are complaining about: ten verses of the Bible read by one child to another.
THE COURT: And this is—these are broadcast or piped from one place—
MR. WARD: Yes.
THE COURT: —in the school to every classroom? Or do they simply—
MR. WARD: Yes, Mr. Justice Stewart. There is a room at which the radio and TV class meets. That is where the little broadcasting affair is. Then the children participate there, those that have been selected to read.
THE COURT: We're talking about one school building here?
MR. WARD: It's the only one that's subject to this suit, sir; the Abington High School. And that is where both of these children are; Roger and Donna are seniors in that school. And this is the way it's carried out at Abington.
THE COURT: In this school?
MR. WARD: In this school.
THE COURT: And there's no evidence at all in the record, as I understand it, because of the posture of the case, as to what would happen should a child or his parents take advantage of the statute and request to be excused from the—
MR. WARD: The only thing that—there is no evidence to show what would happen except this: Mr. Schempp testified—
THE COURT: Well, that's his subjective prophecy. Beyond that, there's nothing, is that right?
THE COURT: So we don't know—there's no evidence at all one way or the other about whether or not there would be any compulsions or coercive forces, psychological or otherwise?
MR. WARD: Yes, because no one asked to be excused.
What are the Schempps really complaining about! It's not the Bible itself—
THE COURT: [Inaudible]
MR. WARD: No sir, Mr. Justice Goldberg. On page 16 of their brief, the Schempps make the argument that they have no objection to the Bible being used in the schools as part of a pedagogical source material. They're like the court below; the court has always said that we are not preventing you from using the Bible in the schools. What the plaintiffs say is they don't like the way we're using the Bible. They say we are not in fact teaching morality, bringing lessons or morals to the children, although that's what the statute says that's what we're doing and that's what we contend we're doing. The Schempps say we are not doing that. How could we be teaching morals?
MR. CHIEF JUSTICE WARREN: We'll recess now.
[Whereupon, the Court was recessed, to reconvene the following day.]
ORAL ARGUMENT OF PHILIP H. WARD, III, ESQ., ON
BEHALF OF APPELLANTS, NUMBER 142—Resumed
MR. CHIEF JUSTICE WARREN: Number 142, School District of Abington Township, Pennsylvania, et al., appellants, versus Edward Lewis Schempp, et al.
Mr. Ward, you may continue your argument.
MR. WARD: May it please the Court, at the close yesterday, I was dealing with the problem: What are the Schempps complaining about?
First, they're not complaining that we're using the Bible in the school. They have said in their brief that they're not complaining about the fact that the Bible is being used. They say what they complain about is the way it's being used. This is consistent with the two decrees of the court. Never has the court said that we cannot use the Bible in the schools. Consequently, the problem here is: How do we use the Bible in the schools?
We say, and the statute says, to bring lessons in morality to the children. The Schempps say, no, you can't be doing this. How can you teach anything, how can you bring lessons in morality to the children? How is it a proper way to teach if you only use one source? We only use one book. If you don't allow any comment to be made on what is being read? If you don't select particular passages that are unusually good? They say this can't be teaching morality. They say you're not teaching morality. What in fact you're doing, they say, is you're teaching some kind of a public school creed that doesn't have religion, that's cut adrift from theology.
On page 29 of their brief, in the second paragraph, they say—and they're talking about the Bible reading practice—they say: "The result is to foster a kind of colorless, national or public school creed, a religiosity without religion, a sanctimonious eclecticism cut adrift from theology."
And Gentlemen, that is precisely what we're doing. We're teaching morality without religion, cut adrift from theology. And that is proper for the people of Pennsylvania. We can bring to our children lessons of morality in their school days as long as we're not bringing religion, not bringing theology. The people of Pennsylvania have wanted to do this; they have, since the beginning, wanted to bring these lessons in morality to the children. So what do they do? They pick a common source of morality, the Bible. They could have picked two sources, ten sources, a hundred sources, but they didn't. In their wisdom, they picked the Bible. In order that only the morals would be taught, in order to keep out any possibility of theology, of doctrine sneaking in, they say it shall be read without comment. They say we shall not pick certain particular passages. They didn't want any possibility of any sectarian or religious instruction.
Now, perhaps the result is, as the Schempps say, it's colorless. I don't know what a colorless creed is or what a colorful creed is, but in any event—
THE COURT: Well, Mr. Ward, may I ask—but this is teaching from which the students may excuse themselves, I gather, under the amendment.
MR. WARD: That's quite correct, sir.
MR. WARD: No, but we excuse them from the flag salute, sir, and that is teaching patriotism.
THE COURT: Why? If that's all you're doing is teaching morality or in the case of the flag salute, patriotism? Why do you treat the subjects differently than you do arithmetic or geography or anything?
MR. WARD: Well, I don't know how is the best way to teach morality, sir. Perhaps you teach morality in a different way than you teach history, but I think—
THE COURT: Well, what I'm getting to is: Is it consistent? With your insistence that all you're doing is teaching morality, yet you excuse them from that teaching.
MR. WARD: I think it is consistent in this respect, sir: The provision for teaching morality—I believe the requirement for the excuse is not absolutely necessary to the constitutionality of this particular practice. I think the fact that we teach it in this way—maybe it's not the best way. Maybe we shouldn't excuse the children, but it's the way the people in Pennsylvania picked out, and as long—
THE COURT: Well, the fact that you do excuse them does draw in question, doesn't it, whether in fact all you're doing is teaching morality?
MR. WARD: Well, no. In Pennsylvania we also excuse children, if they want to be, from a physical and dental examination; if they have any religious compunction about taking that. I think here is a situation—we want to teach morality, we think it's a good thing; we do it in a different way than we teach other subjects perhaps because—
THE COURT: Well, I would think, I would suppose it was a very good thing—
MR. WARD: Certainly; just—
THE COURT: —perhaps even in some respects rather more important than teaching arithmetic.
MR. WARD: I think it might well be, sir.
THE COURT: And yet, if that's all you're doing, it's hard for me to understand why, as I gather under your statute is the case, the whole class can excuse itself, the whole school can excuse itself.
THE COURT: They could have other electives?
MR. WARD: We have other electives. It's not in the record, hut like the children who take the television and radio workshop, the ones that read this, I know, can take it or cannot. But my point is this: Pennsylvania has decided this is the way it wants to teach morality. I agree with the Schempps that it is without religion, it's cut adrift from theology—
THE COURT: [Inaudible]
MR. WARD: No, sir.
THE COURT: [Inaudible]
MR. WARD: No, the Bible, as we all agree, is a monumental document. It has religious values, moral values, historical values, literary values—
THE COURT: [Inaudible]
MR. WARD: I am talking the position—
THE COURT: [Inaudible]
MR. WARD: Pennsylvania—that's exactly what I say, sir. We are teaching the morality in the Bible. We might have used the Koran if we thought that was a proper source of morality.
THE COURT: [Inaudible]
MR. WARD: It is a great religious document, and it has other values.
THE COURT: [Inaudible]
MR. WARD: I don't—sir, when I read the Bible, I may get one feeling; when you read it, another; or the third person. What I say is, the Bible is of value to the atheist, who doesn't believe, or to the agnostic. The morality, the lessons, the history, the beauty of the Bible, can mean something wholly apart from religion. That is why the Bible is such a monumental work, that it has this ability. And that is what we ' re using. And again, the Schempps say that this case, the establishment of religion, is exactly the same as we find in Engel and Vitale; they say that this case is like Engel and Vitale. But the difference between a suggestion of the State that children say a prayer, a solemn avowal of faith, and the suggestion that children listen to ten verses of the Bible, is a complete difference in kind. Suggesting the children say a prayer is suggesting they engage in a purely religious act. A prayer has no secular value. A prayer assumes that the child believes in an almighty, that the almighty can hear him and may help him. That is when you suggest to a child to say a prayer. What are we suggesting? We are suggesting the children listen to ten verses of a monumental work which, as Mr. Justice Goldberg says, is a great religious work, but in addition it is a source of moral values.
THE COURT: Are you saying, Mr. Ward, that the State of Pennsylvania intends that all of those children whose parents are amoral and who don't want their children to be brought up in moral teaching have the right to be excused—
MR. WARD: No, I'm not—
THE COURT: —from that training that you are giving him?
MR. WARD: No, I'm saying that—
THE COURT: Well, isn't that the effect of it?
MR. WARD: No, sir. I respectfully suggest it's not. A person could be excused from listening to the Bible; maybe that person believes so profoundly in the Bible that they only want their children to hear it read liturgically. That person might want their child excused. The second person might be an atheist who thinks it's all a bunch of myths and doesn't want their child confused; that person might want their child excused. A third person might be neutral about religion, but might say I don't want my child to hear certain of the gory passages in the Bible; that child might be excused. Consequently—
THE COURT: A fourth category, of course, could be parents who are amoral—
MR. WARD: Certainly—
THE COURT: —and don't want their children raised in that kind of an atmosphere. And you say as to those, well, as important as the State of Pennsylvania thinks this moral training is, those children may be excused.
MR. WARD: They may be excused, just like Pennsylvania believes it's proper to salute the flag, but those who don't want to, don't have to. Now maybe the family doesn't want their child to be patriotic. They have the right. But what I'm saying is, the act of the excuse, the act of the excuse signifies nothing; it doesn't signify whether you're a religious person, a nonreligious person; it doesn't signify any belief. That is what the Schempps argue, that the provision for excuse in fact makes them make a public profession of belief. It says this is telling all the world, this is a public profession of belief. That isn't in this case. All the parent has to do is say I don't want my child to be present when the Bible is being read. For the reasons I have just given the Chief Justice—there are many reasons why the child should not—may be excused. I think what the Schempps are objecting to is that they have to do something. I think they are saying: Why should I have to do something to get my child out of it? Well, Gentlemen, the Jehovah's Witness parent has to do something to have child excused from the flag salute; the Catholic parent has to do something to send their children to parochial school. The man who takes the fifth amendment has to do something. I don't think it's unconstitutional to require them to do something. Then again, the Schempps say what this does is this separates the children, it's divisive; it separates our children from the others, they will be different, they will be oddballs. They will be different; they will be different because this separates the children from those who want to be present when the Bible is being read from those who don't want to be present. It doesn't separate them as Catholic and Protestant or Jew and atheist. An atheist may well want to hear the Bible, they may well get moral lessons out of the Bible. A devout Christian may well not want to hear the Bible. It separates them, they are different, but not different according to their religion.
THE COURT: You mean they're separate but equal.
MR. WARD: No, I don't mean that, sir; I don't mean that. I mean they are separate in this way: They are separate as the child that's been excused from the flag salute is separate. They are separate as the conscientious objector is separate from those who serve. They are separate as a child who goes to parochial school is separate from the child who doesn't. That's the glory of the country: they can be separate, they have the right to be separate. There are only two places where they would all be the same. One, of course, would be a totalitarian state where we couldn't be different; and two would be some sort of big togetherness state where we never did anything unless everybody wanted to do that very same thing. And of course, there are not many things that everybody wants to do.
Then the Schempps say—
THE COURT: Mr. Ward, are you asking us to overrule Vitale?
THE COURT: Why isn't it Vitale?
MR. WARD: Vitale was suggesting that the children do a purely religious act. Vitale was suggesting that the children each morning say in fact I believe in God, I want him to bless my teachers and the school. There is no meaning to a prayer unless there is a religious, a purely religious doctrine—a purely religious act.
THE COURT: You mean there's no religious meaning to the Lord's Prayer?
MR. WARD: Sir, we are not, in this case—I am arguing for the Bible reading statute. The Lord's Prayer is a custom at Abington, but it is not the subject—
THE COURT: It's permitted under the same, permitted under the same law.
MR. WARD: No, sir.
THE COURT: It is done, isn't it?
MR. WARD: It is done, but it is not part of the statute of Pennsylvania. In other words, the statute of Pennsylvania requires only that ten verses of the Bible be read every morning. It is a custom at Abington to follow that by a recitation of the Lord's Prayer. The injunction against us says that if we just do the statutory method, just the Bible, we are unconstitutional. If we do it, the Bible and the prayer, we're unconstitutional. Consequently, this Court must concern itself with the Bible, because if that is unconstitutional, you don't have to bother with the Lord's Prayer.
THE COURT: Suppose they read them that part of the Bible that is the Lord's Prayer?
MR. WARD: There is a distinct difference, sir, I suggest. In other words, the Lord's Prayer appears in Luke and in Matthew. When it's read to them from the Bible, it is an explanation, an historical account of how Jesus taught us to pray. I think that is different than suggesting that the children say this prayer. And as an analogy, to point up the difference, suppose I lived in Baghdad and my son Phil went to a school there. It's a Mohammedan nation. And he gets to school; every morning they read ten verses from the Koran. And one morning he gets there and they read: And then Mohammed gathered his scribes and warriors around hint and said this is the way you shall pray: There is no god but God, and Allah is His prophet. And then—
THE COURT: I happen to know that there's no First Amendment in the Constitution of Iraq.
MR. WARD: No, sir; I'm trying to explain the difference between reading a prayer as part of the text of the Bible and suggesting to the children that they say the prayer. I would think that it would be entirely different if, as I am describing, the Koran says this is how Mohammed said to pray than if every morning my son goes there and they start by saying: There is no god but God, and Allah is His prophet.
THE COURT: [Inaudible]
MR. WARD: Sir, that's the name of the Bible. The Douay version is The Holy Bible, the Revised Standard version is called The Holy Bible, the King James version is called The Holy Bible.
THE COURT: [Inaudible]
MR. WARD: Sir, all the Bibles I've seen are called The Holy Bible. The Jewish Holy Scriptures—
THE COURT: [Inaudible]
MR. WARD: But The Holy Bible is the generic for this particular book.
THE COURT: Well, Mr. Ward, I take it then you do say that one of the significant differences in Vitale is the fact that students here do not participate other than by listening?
MR. WARD: It's not so much whether they speak or whether they don't speak, it's—
THE COURT: Well, would you make—you would make the same argument if the school required them to repeat what was read to them, in unison?
MR. WARD: I don't think that is—that may be bad on—
THE COURT: Would you make the same argument or not?
MR. WARD: Mr. Justice White, I didn't quite understand. If, instead of reading the Bible, all the children had—
THE COURT: They asked that the students repeat after the reader what the reader read.
THE COURT: Whether it's religious or not?
MR. WARD: Yes. I mean, I don't think you can require—I think that was the finding in the Barnette case. It wasn't so much it was a religious act; there's—the First Amendment prevents—
THE COURT: You can't make him avow a belief.
MR. WARD: Yes.
Now in addition, the Schempps say that this case—as did the court below—falls squarely within McCollum. Here again you have an entirely different situation because in McCollum you are dealing with a purely religious act, pure sectarian instruction; there is no doubt about that. The school is making possible and, in a sense, suggesting to the children that they either go to one of the three religious teaching classes. That's not here. McCollum, Zorach, all of these cases deal with a purely religious act. Here, com paring one child reading over the public address system to the other children ten verses of the Bible cannot compare with the admitted religious instruction in McCollum. Again, in Tudor, the Schempps mention the Tudor case might have an affect. In Tudor we are dealing with the Gideon Bible. The Gideon Bible is the New Testament, the Psalms and the Proverbs from the Old Testament. The Gideon Bible is a—distributed by the Gideon Society, which is an admitted Christian evangelical organization. They are trying to bring men to Christ. This would be helping a religious group to distribute their pamphlets.
THE COURT: Mr. Ward, would you say that if the statute did require the children to repeat the Lord's Prayer that it would be unconstitutional?
MR. WARD: I think it would, sir.
THE COURT: You think it would.
MR. WARD: Yes, to repeat it.
THE COURT: It would fall in exactly the same category as Vitale?
MR. WARD: I would think it would, sir.
THE COURT: Well, would you say so if there were a statutory provision to excuse any of those who did not want to do it?
THE COURT: Well, how about Barnette, the Barnette case?
MR. WARD: No; but the Barnette case I don't think went on the religious part.
THE COURT: No, it didn't; but what it did say was that the Minersville School District could not require a child to profess a certain belief; i.e., the Pledge of Allegiance to the flag. But as I understand that case, as I remember it, we said that if there were provision to excuse any child who didn't want to do so, then you have a different constitutional question.
MR. WARD: Well, I think because of the nature of the prayer—I think the prayer in Engel and Vitale and any prayer, to me, has no secular meaning; it's a purely religious act. And I think it certainly can't be required and I think even suggesting the children do it, there may be a compulsion on the child, he may feel he should do it. And I don't think the Constitution—
THE COURT: Well, if there were evidence of that, then there wouldn't be, in effect, an excusal provision.
MR. WARD: Well, this is a hypothetical—
THE COURT: Yes. So assume there were a provision by which a child could be excused and the evidence showed beyond doubt that there was absolutely no pressure on him of any kind, psychological, social or otherwise, or any separation or stigma of any kind: Under the Barnette case, don't you think it may well be constitutional, that it might well be constitutional?
MR. WARD: In a—
THE COURT: Would you agree that you can assume that there's never any pressure on a little child to do that which all the others are doing and which if he doesn't do, he'll have to step aside?
MR. WARD: Oh, no. I think—as I understand your question, Mr. Justice Black, it's do I think that no child is sort of compelled by the fact that all the rest do something.
THE COURT: That's right.
MR. WARD: Oh, no. I certainly think children—
THE COURT: Can you assume that children are that way? Can you assume that there are circumstances—
THE COURT: —under which children in school where the majority, an overwhelming majority, belong to one group, they've got to step aside each time they say something; can you assume that there'd be no pressure on them to step aside?
MR. WARD: No, I think there may well be. I think there's pressure on the child that's excused from the flag salute. I think maybe his little friends say: Why don't you salute the flag? I think the child that doesn't go to the school dance, they might say: Why do you do this? I think undoubtedly there is this difference. There is nothing we can do about a difference, and I think there is a general pattern of conformity; but in our case there is no pattern to make the child do a religious act.
THE COURT: That assumes that we can distinguish—which I confess is a little difficult for me, with my idea of the Bible—that we can assume that the Bible, whenever it's read, is not read because of its religious connotations.
MR. WARD: I think that's a fair statement, sir, that we say, our statute says, the testimony of our witnesses from the school say, that we are using the Bible to bring lessons in morality to the children. We admit the Bible has a great religious value. It has a great religious—it's obviously an original, a religious document—but we say in addition to that, it is a source of morality for Western civilization that we have adopted. That the morals in it are what we want our children to find, and we think by—
THE COURT: You think we adopted it because of its morality or because of our religious faith?
MR. WARD: I think we adopted it—I think the morality, it's a morality we understand. Suppose—would we adopt the Koran? May I speak to that for a moment? I think Pennsylvania—
THE COURT: Well, I don't think we would have to do that if we had that kind of system, because as I recall it, governments had a great deal w do with, by force and compelling people to belong to that religion, didn't they?
MR. WARD: Well, sir, I didn't mean if we were Mohammedans. I meant would Pennsylvania, is it likely they might have adopted, as a source of morality, the Koran? And I think, wholly apart—I don't think it's the religious reasons; I think it's—we are—nobody, at least in Pennsylvania, we're not too familiar with the Koran. What are the moral—is it a source of morality? The one thing I know about the Koran is it says that you should have no more than four wives. That would be a doubtless—
THE COURT: Do you know whether anyone's ever suggested that they pass a law to read the Koran in the schools?
MR. WARD: No, I've never heard of it and I don't think it ever would happen because we don't consider the Koran the supreme source of morality that we consider the Bible.
THE COURT: Why?
MR. WARD: We don't know anything about it.
THE COURT: Is that the reason?
MR. WARD: Well, I mean—I've been exposed to a little education; I don't know too much—as I said, the one—
THE COURT: Yes, but is that the reason? Isn't it the reason that the Bible is a religious book? The prayers in it are religious pray ers. Its writings have been accepted through the centuries as the great truths of religion; isn't that it? How can we escape that?
MR. WARD: Mr. Justice Black, it is that and so much more. It's so much a part of the tradition of this country, of the morality of the country. It's our sort—I mean, you can't say that morals only spring from religion. The atheist can be a moral man; the agnostic is a moral man. Morals are—the morals in the Bible are not so deeply based on the Christian-Judaic concept that they can't be separated. Certainly we can't claim, the Christians and the Jews can't claim the morals that are in the Bible as our own particular document, that they're only ours. We can teach morality, and we think that the best place to get morality for our system in Pennsylvania is to use a book that everyone's familiar with; everybody approves those morals. When I—
THE COURT: Everybody?
MR. WARD: The vast majority. If it were everybody saying we want to pick this as our religious book, that would be bad. We can't pick a religious book.
THE COURT: We have to assume that Pennsylvania's done this not to advance religion at all, not because the people up there believe in the Bible, not because they believe in the religion it teaches, but wholly aside from that, because it has some moral precepts —which it does.
MR. WARD: That is exactly it, sir.
THE COURT: That's the assumption we have to make.
THE COURT: Suppose the statute said—just to get it concrete—suppose the statute said: We want this Bible reading in school every morning because we are religious people; we believe in the particular religion of the Bible, and we want it read so that these children, all the school children of Pennsylvania, can hear it, although we will excuse those who do not want to; but we do it because it's a religious book. What would you say then?
MR. WARD: That would be unconstitutional.
THE COURT: So it gets down to a question of whether we can say that it is being used as a religious book and if we can say—be cause it is a religious book—and if we say that, should we hold it constitutional?
MR. WARD: I think—that is why I said when I opened this case that it's a novel question. The Bible has religious values, we all admit that, we all know that. The question is: Can the people of Pennsylvania use this source of morality to bring lessons in morality to their—
THE COURT: The question is, as I gathered when I was asking you, whether the people of Pennsylvania have done this; whether they have actually done it because, as I would assume but for your argument, that the people there believe in that religion. They like the Bible; they've heard it from their infancy; they love it; they love its principles and they want to have it taught in their schools because it's a religious book. Without your argument, I would not thought that—
MR. WARD: Mr. Justice, are you asking me: Do the people of Pennsylvania do it because it is a religious book?
THE COURT: Yes.
MR. WARD: No, sir; our position is they don't. Our position is that they, of course, appreciate the Bible, but in their schools they are bringing lessons in morality. If they had wanted to bring the religious part, we would have had comment, we would have picked the particular passages; we would have—I mean, if we're to teach religion, we could do it in a different way. Our argument here is: Here is a traditional practice that in the absence of the fact that the Bible has religious connotations, we wouldn't be here today. What we are arguing is—
THE COURT: I suppose you would agree, wouldn't you, that during its 2,000 years of history, the greatest years, the most glorious years and the most productive years of the Christian religion have been those years when government didn't enforce it? Would you agree to that?
MR. WARD: I certainly would, sir.
THE COURT: And that its worst years have been the years when in some way public officials got hold of it and corrupted it? You would agree with that?
MR. WARD: I would agree with that completely. And I also state that here the State is not forcing religion.
THE COURT: Mr. Ward, may I ask you this please: Suppose we accept your argument that this ceremony is moral instruction and is not in any sense religious. Suppose the State next says: Following these ceremonies each , morning there shall be one hour of instruction in morals and during that hour of instruction nothing shall be done except w read the Bible to the students and all must attend except those whose parents object to it. Do you think that would be acceptable, also?
MR. WARD: I think, as the case before us now, ten verses is acceptable. I think I agree with you, Chief Justice, it could become so bad that you couldn't—reasonable men couldn't say they are teaching morality. They would have to say: They are doing nothing but using the Bible to indoctrinate those children with religion.
THE COURT: Would an hour of instruction in morals be unconstitutional, where a few moments of instruction would not be?
MR. WARD: I think that would be a question of fact. I would think an hour taken out of the school day for morality—as Mr. Justice Brennan said, morality is a very important thing to teach. I don't know—
THE COURT: It is, it is very important.
MR. WARD: I don't know. I know if the people of Pennsylvania think that's a good way to teach morality, I think the problem would be for the Court to determine. In fact, could we, as reason able men, believe that Pennsylvania is really trying to teach morality or, by this tremendous emphasis on the Bible, they are in fact trying to teach religion. And I think it's a question—
THE COURT: Isn't that our problem today?
MR. WARD: It's exactly your problem today, sir. And I—
THE COURT: [Inaudible]
MR. WARD: I think you can sum up our particular problem as this: Can you use, can you keep a tradition which has secular values—it does teach morality; it is noncompulsory, a child doesn't have to be there—but the only problem is, it is, it involves part of the religious tradition of this country. It deals with a document that is of obvious religious origin and to many people an obviously religious book. Can you use the great values that are in the Bible, or does the Constitution mean—which I respectfully say it does not mean—that despite the fact that nobody is forced to believe or disbelieve anything, nobody is forced to contribute to support, nobody is indoctrinated; despite the fact that this custom doesn't do any of those things—must the Government rip out that Doctrine, that tradition, simply because it involves a religious book? Must the Government, any time any tradition in any way reflects the fact we are a religious people, must they rip out any tradition even, even if that tradition nobody has to abide by? The tradition isn't trying to teach anybody anything; the tradition isn't requiring a person to believe or disbelieve. The tradition has secular value; it has a purpose, like the Sunday closing. It has a purpose: to teach morality to the children.
THE COURT: [Inaudible]
MR. WARD: I think, had Pennsylvania decided that was a good way to teach morality, it would be constitutional; but this is what I think: I think it is—Pennsylvania would have, the people of Pennsylvania may have decided by selecting certain particular sermons, certain particular tracts, sectarianism could creep in. In other words, how do you really find any volume, a monumental work for a source of morality, such as the Bible? And that's why the Bible is used. It's here for us to use. Picking the sermons—I think if Pennsylvania decided that was the way to do it, I don't think it would be unconstitutional.
THE COURT: Mr. Ward, as I gather—do I correctly gather that your argument comes down to a very narrow compass, and that is that this is not, the statute does not require a religious act. That if we're not persuaded by your argument that it does not require a religious act, then I gather you concede that this religious act, not withstanding the provision for excusal of the children, is unconstitutional.
MR. WARD: You correctly stated the first part of our argument, that we say this is not a religious act; therefore, it's constitutional. If you hold that it is a religious act, I think it falls within that body of tradition that we have that is like "In God We Trust" on the coins, like starting this Court with "God save this Honorable Court." I don't think it is--it rises to that dignity, that type of religious act. I think religious act in Engel, where it was actually a prayer, where the children were required to make an avowal of faith, that is—I distinguish from this case. I distinguish the kind of religious act that was suggested in McCollum, because that was pure religious indoctrination.
THE COURT: Well, then I should add then, it's only if we were able to conclude that this statute required a religious act no different from the religious act required in Engel that you'd concede its unconstitutionality—notwithstanding this provision for excuse.
MR. WARD: I concede, if this Court determines that our ten verses of the Bible is the same nature as the—in Engel and Vitale, requiring the children to say they believe in God, yes; I think under Engel and Vitale you would have to declare it unconstitutional.
THE COURT: That is assuming that Engel and Vitale governs the case—
MR. WARD: Yes, and I respectfully submit it does not—
THE COURT: Are you going on, as Maryland suggested, that perhaps we must reexamine—
MR. WARD: No; I think our case—
THE COURT: Well, I know it; but assuming that the Court found this to be a religious act of the kind that was in Vitale, are you going on to say that we should reexamine Vitale?
MR. WARD: I would say you should if you find that this kind of an act that we are doing, which, as I say, has secular values, is traditional, but in some way reflects the religious tradition of this country—if that is unconstitutional because of Vitale, then I suggest you have to reexamine Vitale. I don't think our case is anywhere near Vitale, and I don't think that's what Vitale held.
In addition to the foregoing argument, we also would like to suggest that the plaintiffs in this case don't have standing to sue. We need not even concern ourselves with the constitutionality under the doctrine.
THE COURT: Do you have one final statement? You may make it, if you do, Mr. Ward.
MR. WARD: May I allow the Attorney—Deputy Attorney General of Pennsylvania to make a final statement, sir?
MR. KILLIAN: Your Honor, may I make a short statement—
THE COURT: You may make a short statement—
MR. KILLIAN: —at the end of the other argument?
THE COURT: Yes, yes; I'll give you five minutes.
MR. KILLIAN: Thank you, sir.
MR. CHIEF JUSTICE WARREN: Mr. Sawyer?
ORAL ARGUMENT BY HENRY W. SAWYER III, ESQ.,
ON BEHALF OF APPELLEES, NUMBER 142
MR. SAWYER: Mr. Chief Justice, may it please the Court, I believe that Mr. Ward has completely stated the procedural history of the case and I'll not repeat that; and for the most part, I believe, has fairly and most fairly covered the facts of the case, but I would like to comment in one or two particulars on the evidence and one or two of the facts of the case which I think need some comment.
First of all, I think it should be quite clearly understood that the particular practice described by one of the witnesses for the school district who ran the radio and television workshop was characterized by the lower court as an exception, and the record is quite clear that in the other schools of Abington Township where these children went as a matter of fact when the first trial was held, the practice is typical of the Commonwealth in general—if it makes any difference—and that is that the teachers generally read the ten verses or, in the alternative, assign it to some child in rotation. You don't have the public address system—and in fact, on cross-examination, the teacher who described that practice conceded that it was only his own individual innovation which had prompted him to suggest that since the children might well read better from the radio technique standpoint, as he put it, if they had a chance to practice. They might use at home their own Bibles, and then come in and use them. If it makes any difference. I think the lower court was quite right in saying that that would only mean that you'd establish a number of religions or religion, generally. And in fact, we never did find out from that witness what the Jewish children did about the Lord's Prayer—because they read that, too, you see, over the PA system—since the Lord's Prayer isn't in their Bible.
Now, the other point that I would make is this question of where does the Lord's Prayer stand in this case. It quite clearly is not mandated by the statute. However, the record shows—and on page 99, I refer to the testimony of a witness for the school district, and there was introduced into evidence by the school district a book called Employees' Handbook: An Administrative Guide. And the witness' attention was directed to the portion which refers to "Teachers-Professional Obligations." And it states there that the first professional obligation is to comply with the State regulation in reading at least ten verses of Scripture each morning without comment; this is to be followed by the Lord's Prayer.
Now, that is a part of the hearing which took place before the amendment to the statute, but there is no evidence in the record that this regulation in any way has been changed; and I don't know why it would be changed, because the amendment to the statute didn't affect this Lord's Prayer practice.
THE COURT: [Inaudible]
MR. SAWYER: That's on page 99, Mr. Justice Harlan.
THE COURT: In fact, it doesn't say anything about that.
MR. SAWYER: No, it does not.
We contend, of course, that the injunction bars it now. You can't read the Lord's Prayer because it's a part of the New Testament, part of the Bible. But it is apparently, according to this—this is a statewide publication—it's mandated at least by that rule. And I also call your attention to that passage in deciding whether this is compulsory. Now, the school district always calls this a voluntary Bible reading statute. There's nothing voluntary about the Bible reading. The Bible reading is mandated by the legislature. The language is, it shall be read. And as the lower court found, in spite of the repealer of the specific provision in that statute saying a teacher would be dismissed if he declined or neglected, the public school code takes care of that. And as the lower court, as Chief Justice Biggs found—Chief Judge Biggs—in his opinion, he stated that under the public school code, since there is a clause that says a willful violation of the school laws is punishable by dismissal, it seemed at least quite clear to him, and it would seem quite clear to me, that a teacher could not refuse. I don't think that, that the case turns on whether the teacher could refuse; this isn't a teacher. But I wish to set the record straight in that respect.
Now, we claim that the practice is not voluntary in any sense which applies at least to the establishment clause. It is compulsory. We'll come, if we may, in a minute to what happens and what the effect is of an excuse provision.
Let me say, though, that it's also quite clear from the evidence that the Schempps do not take the position that was referred to here in the brief. I really think that the brief was quoted out of context. The Schempps testified, children and father alike, of specific creedal, doctrinal, religious beliefs of theirs, as taught in their family and in their church, that were opposed by, if you will, contrary to specific things that had been read from the king James version of the Bible. Since they are Unitarians, the most obvious one is the concept of the Trinity and the concept of unity. This is the most obvious, but there were others. Mr. Schempp said that he didn't wish his children to get the concept of, as he put it. "a god of vengeance," the Old Testament God, the jealous god who demands blood sacrifices and says if you don't do them properly—and this is Leviticus—if you don't do them properly, then the punishment comes upon you and your children.
And I question—we come to this question of the Bible's morality. Of course there are morality teachings in the Bible, and of course those things which I frankly say I think would offend present day morality—I have no hesitation in saying that because to an adult or with teaching, they can be explained as a great evolving concept of these people, first, toward monotheism; then to rid themselves of these practices left over from pagan times; and finally to evolve into a concept of God. Certainly the God at the end even of the New Testament is not the God of the beginning of the New Testament, but children can't separate this. I'm not sure it's morality either to tell children that—and I'm only thinking of things that were in this record; I mean, you could go at random through the Bible—but Mr. Schempp says when the Bible says if an animal dies within your gates, feed it not to those within your gates but to the strangers outside. Now, this doesn't seem like morality to me. Now, this can be explained. It just so happened that that particular thing was cited, and then Dr. Grayzel, the Jewish expert, said, well, this can be explained. I won't go into the explanation, but there is one. Now, this is a different thing with an explanation, but with young children, one wonders whether this is necessarily—so. Morality without explanation, as the reading of the Bible alone, will insure good morals. Mr. Schempp pointed out that right in the Ten Commandments there's a verse that says that if one of them, or perhaps all of them, is broken, then the sin will be upon the children unto the fourth generation. That isn't his morality—and I'm sure that can be explained, but it isn't his morality. And reading that without comment is not the kind of concept, even moral—and I really submit you cannot separate the two in this context—you cannot separate the moral leaven from the religious leaven in the Bible. I think the two go absolutely together.
And it teaches; they say it doesn't proselytize. It teaches: the book teaches from the opening chapter of Genesis to the last chapter of Revelations; it teaches. It teaches the way the world was created, and it teaches in a sectarian sense from the opening. From the very opening it says, "And lo, the Spirit was upon the waters." And in the king James version and, I am sure, the Douay version. that word is capitalized. It means the Holy Ghost. This is a beginning of a teaching of the concept of Trinity. It teaches; the New Testament is a teaching message. When Jesus said, "Others have said unto you, an eye for an eye and a tooth for a tooth; but I say unto you, thou shalt resist not evil. And if one smites thee upon cheek..." and so on. This is teaching. And it was highly controversial teaching then, and I submit to Your Honors it is highly controversial teaching now. Men do not agree about these things.
And what I said in my brief was that to dismiss these differences as mere quibbles, to say, well, it doesn't make any difference, it's really, as the Attorney General of Maryland said, a question of theism or nontheism, is to fly in the face of hundreds of years of history and bloodshed, I submit; but of religious history. And I said there that is to—to do that is to deny the validity to many and the value of specific creedal, religious belief. Not religion in general, not a kind of generalized theism which is suitable to some but not to others. And I said that to do that is to lead to or foster a kind of colorless national public school creed. But I don't say that's what they're doing. It's those who make the argument: There's no one here but us theists; we're just reading some lessons of morality, I submit, that tend to do that. And I submit that it isn't the function of government, school districts; it isn't the function of even forces in society to insure that these religious differences of America shall somehow be sort of blurred and sickled over and we'll come out with this kind of morality. I don't think that's the business of the public schools particularly. But it's a tendency behind this kind of practice when it's justified in this way. And of course, it must be because to say otherwise is to admit it for what it is and for what the legislature so clearly intended. They didn't single out another single work in the range of the world's literature, and there are other sources of morality; not one other book in all of the range of the world's religious and secular literature is singled out by the Legislature of Pennsylvania to be read. How many? Ten verses. It shall be read. How? Without comment. This is unique to start with.
Now to be sure, the legislature said, well, we do this for a secular purpose. And I think that all establishments are not only done for a secular purpose—at least since the Middle Ages. I suggest there's never been an establishment—and I mean a real, complete establishment such as you have in England, you have in the Scandinavian countries with their churches, such as you have in, shall we say, Italy or Spain—there has never been an establishment in modern times which purported to be an establishment in order to convert men to the doctrine, but rather to improve their ways. Because isn't it true that the majority—and they are the ones who are in a position to have an establishment—always say and they must assume, well, it's not only our religion that is so effective, but you know our particular religion just has a way of making men better than other religions; and therefore it's to the good of the state to have it established.
And I suggest, in answer to Your Honor Justice Stewart's question—that leads me very close; I'd like to try to answer it. You haven't put it to me, but you put it to one counsel yesterday, and you said: Is there not inherent in this situation a conflict between the free exercise clause and the establishment clause? And I think not, for this reason: I do not think that the free exercise clause—well, first of all let me say, of course you cannot prevent people from praying. I mean people could pray, and may pray, and nobody stops them from "praying," as such. The question is: Is it a constitutional right, under the free exercise clause, to have the state conduct the prayer, or "to pray," in other words, under the aegis of the state? And I think clearly not. Even if the overwhelming majority so feel, I think it probably has nothing to do with the question of majorities.
THE COURT: Well let's assume, let's assume there was no statute here but that they had a student government in this Abington Township High School—which is fairly typical of many public high schools—and the students voted overwhelmingly that they wanted to begin their day by having one of their number or perhaps on a rotating basis, read 10 verses from the Bible, whichever Bible the particular student reader chose that morning, to begin the school day. And then this was attacked under the Constitution and there was evidence from all of these people who voted that our religious beliefs tell us we want to do this in the free exercise of our religion. What kind of case would you have then?
MR. SAWYER: May I ask a question just on the facts? Is this the case where—
THE COURT: I make up the facts as I go along, Mr. Sawyer.
THE COURT: Well these children are together. They are together.
MR. SAWYER: Well what would they be doing, otherwise? I mean—in other words, I'll answer it this way: If, pursuant to that, the school authorities say, "Yes, you may use the PA sys tem; we'll have the children doing not something else at the time in the classrooms," then I'd say it's an establishment nonetheless— not so gross a one, but an establishment. But if they say, "During recess, all children who would like to come and listen to 10 verses being read in an empty classroom or somewhere around the school grounds: instead of going in to recess, we ' re going to read it every day," fine. The difference is the imprimatur and the aegis of the state. And I'm not sure that the origin makes that much difference. Of course it's grosser if the legislature does it.
THE COURT: But isn't it a gross interference with the free exercise of the religion of those in my imaginary case—those 98 percent of the student body who say our religious beliefs tell us that this is what we want to do?
MR. SAWYER: Well, they have a right to do it, Your Honor, but they haven't got a right to get the state to help them. It's the same—I think it comes hack to the same question as confronted Madison and Jefferson in Virginia. The overwhelming majority of Virginians at the time of the assessment bill were Christians and they wanted the State to help them establish the church—but equally, absolutely equally; and they had an excuse provision, because as the assessment bill was finally, in its final form in the Virginia Legislature, provided that if you didn't want to give to any religious group, you could designate for secular educational purposes. Perfectly voluntary, in that sense; that's how they would describe it. And the overwhelming majority wanted this, and they wanted it, interestingly enough, for the same reasons: because they said religion had a tendency to correct the morals of men and leads to good citizenship—just the same as Pennsylvania now says.
But it seems to me that Madison saw two fallacies in this, Your Honor. One was, he said, "Who does not see that that authority which can establish Christianity"—all of it, now, and this is 99 percent, surely, of Virginians then—"establish Christianity to the exclusion of other sects, may with the same authority establish one sect of Christianity?"
Secondly, he saw that it's deeper than that. It's deeper than that: it's that the state should not use religion for its ends—and that's what the solicitor general of Baltimore tells me they're doing. They want to have discipline and authority, as he says, at the beginning of the day. To that, I say, "Ah, yes, precisely." That is the state now using religion. Nor should religion use the state.
THE COURT: You're addressing yourself historically to a matter of the wisdom or unwisdom of Virginia's policies. Other states have different policies. Massachusetts, if I'm not mistaken, had an established church well into the 19th Century.
MR. SAWYER: It did, indeed, sir.
THE COURT: A Congregationalist Church. That's a matter of wisdom or unwisdom; what a state might want to do by its organic law or by its statutory law is something else. What we're talking about is the Federal Constitution and what that requires a state to do or not to do.
MR. SAWYER: Well, I—
THE COURT: Certainly it requires a state to respect the free exercise of the religion of every inhabitant of that state, does it not?
MR. SAWYER: It does indeed. But I don't think that the correlative of that is that free exercise means that you enlist the state to help you exercise.
THE COURT: Isn't it true that states—every state—helps religion in a multitude of ways? It gives them fire protection, police protection; it gives them, usually, tax exemptions—
MR. SAWYER: Well, of course—
THE COURT: All religions.
MR. SAWYER: Yes, sir. Protection is, of course, for the benefit of the community, because the barroom next door might catch on if the church burned. But the tax advantage is certainly a favor toward—but that's a refraining even there from an affirmative act of taxation. Fortunately, we haven't got that case. And I would say I would like to disassociate myself with the view that once you find any kind of possible encroachment of the first amendment, that all encroachments arc of equal weight. I think that view may have been voiced yesterday. I suppose that the religious clause of the First Amendment comes as close to an absolute as any we have, but I submit that there is no absolute known to the Anglo- Saxon Law; and even this one must give way to the doctrines of de minimis, which I think clearly apply to rubrics on the coins.
Does anybody really suppose that any court, at any level, could entertain from the standpoint of standing, or de minimis — or, to put it another way, doesn't have the wit, as lawyers trained in the Anglo-Saxon tradition of de minimis and standing, to get of a case like that? Who—
THE COURT: What do you mean by "de minimis"?
MR. SAWYER: Just that the incursion there is so—
THE COURT: If the violation of the Amendment is so little, the courts don't always enforce it?
MR. SAWYER: Yes, sir. I think even the religious clause of the First Amendment is subject to the doctrine, at some point, of de minimis.
THE COURT: You think that that means that the First Amendment doesn't forbid it? Or the courts decide they won't enforce the small—because it's such a small violation?
MR. SAWYER: Well I cannot separate, Your Honor—I really am not fencing—but I really think that you can't separate what a court will do from what the First Amendment forbids. I think under our system of ad hoc decisions, of judicial parsimony, you can't really theoretically separate a—in other words, there cannot be any violation of the First Amendment in vacuo; there can only be a violation of the First Amendment in terms of a justiciable issue. And—
THE COURT: [Inaudible]
MR. SAWYER: Well, I could not—well, not a religious exercise, no, sir. But I think it's a religious declaration, and I couldn't candidly say that. I just think that—
THE COURT: I suppose that what you're saying is that no part of the First Amendment, as applicable to the state, gives any person the right to call on the state to open up a place for him to practice religion. That religion, it leaves religion as a voluntary thing for the people themselves. I would think probably that would be the idea about the free exercise.
MR. SAWYER: That's what I was trying to say, Your Honor.
THE COURT: Throughout the ages, politicians have wanted to get hold of religion and have done it now and then to the great discomfiture of the religion, in the final analysis.
MR. SAWYER: I'd like to say another word about the testimony. I don't think that we should gloss over these doctrinal and sectarian differences. I think they are profound and I think you have here—I'm speaking again, now, really, in terms of free exercise, I suppose—at least in terms of detriment. I refer, or take as my text at least the testimony of Dr. Grayzel.
Now it was said here yesterday that there was some minor doctrinal, minor differences in these versions of the Bible. And Counsel, I believe, even lumped in the Jewish Holy Scriptures. Well, minor differences—the New Testament, the concept of Christ, a man who historically lived as being the Son of God, is as Dr. Grayzel testified, to Judaism a blasphemy. This was, in fact, Christ's crime. It is a blasphemy and you can't gloss this over by saying there are some "minor differences." He pointed out that there is ridicule of the Jewish hierarchy throughout the New Testament. He pointed out, and think of it, gentlemen, the scene of the trial of Jesus before Pilate. He said this had been, where the multitude cries not for Barabbas, but for Jesus, and Pilate washes his hands. And the version exculpates the Romans for the death of Christ. And then the Jews say, and they are so described, they say, "His blood be upon his and our children." And Dr. Grayzel said that sentence has been responsible for more anti-Semitism than any single sentence in history, and I can't doubt it. And I don't think—I don't see any reason why it shouldn't be said. You cannot read the New Testament in those eyes—not the way, perhaps, some of us read it, without this kind of thought at all in our minds, or had it read to us—without realizing that it is consistently, implacably, and in some cases systematically, anti-Semitic—sometimes deliberately, I am sorry to say.
And Dr. Grayzel pointed out that when he was cross-examined inadvertently about the story of the Good Samaritan, which would appear to everyone perhaps to be a very nice story, and he pointed out the deliberate anti-Semitic bias of that story and how historically the story had some origin in Jewish roots, but that the Samaritan had been substituted for the Israelite—it originally being a story of the three gradations of Jewish society and their varying responsibilities in terms of the laws regarding cleanliness and disease. And surely that ought to be enough of it; that ought to be the end of the matter.
THE COURT: But you must then disagree with Dean Weigle who said that the—what did he say? He said, "In my opinion, the Bible is not a sectarian book."
MR. SAWYER: Well, of course he was the School District's witness. And I did disagree with him—
THE COURT: He's also Dean of the Divinity School—
MR. SAWYER: Well, I'll accept everything he said on cross-examination. He said later, Mr. Justice White, that, well, he really would say it was nonsectarian with the Protestant sects. Well, first he said, "within Christianity," and then he gave a great caveat as to the Catholics—quite a caveat. He said, "Well, I'm not a Catholic, and I'm not qualified to say," and "they have footnotes and transcriptions." And then so he came down to the Protestant sects and then he finally agreed that at least some people thought that the new Revised Standard version was highly sectarian; that there had been a public book burning of that as late as 1952. I don't think he came out with anything more finally than it was nonsectarian among the Protestant sects: and that's what the lower court found. And he also said that, as literature and history, the work was secondary; and that the primary—
THE COURT: Yes, but he said the Douay version would also be nonsectarian.
MR. SAWYER: Well I think that, later on, Your Honor, he had a caveat as to the Catholics. In the record, on direct examination, I think he said that.
But let's assume, Your Honor, that it's totally nonsectarian within the Christian church. And I think I can demonstrate from our evidence that that just isn't so; that the Catholic encyclicals which we quote, the Catholic Encyclopedia, make it very clear that the Catholics regard the King James version—which has been characterized as the chief arm of the Protestant revolt, whose dedication is profoundly anti-Catholic, speaking of the Pope as that man of sin—and the Catholics characterize it as a work full of error and work which has deliberately been used for proselytizing. Now whether that's true or not makes no difference if Catholics, or some Catholics, so believe. And it is no accident, I believe, that all the Bible reading cases—and I think there is no exception to this—that were brought during that early period of the 1890's and 1900 were brought by Catholics. And in fact the most shameful page in Philadelphia's religious history grew out of this controversy, where a few blocks from the place where this case was tried in the infamous nativist riots in 1844, brought about by the Native American Party—it grew out of what version of the Bible should be read in the public schools. Bishop Kindrick had said that the Douay version ought to be given equal status, and the Knownothings seized upon that and said: Ah, the Catholics are trying to throw the Protestant Bible out of the public schools. The riots followed and people were killed; churches were burned. In fact, the Catholics finally were given shelter in a Quaker meeting house at Third and Walnut. And this is not a typical page in Philadelphia's religious history. We pride ourselves on religious tolerance; but that happened in Philadelphia and it concerned this very thing as here: whether it would be the Douay version or the King James version that should be read.
THE COURT: [Inaudible]
MR. SAWYER: No, sir. Because I find that, in the first place, it is not common to all the Bibles, in this sense, that there are books that a r e omitted from the Douay version, and books that are omitted from the King James—
THE COURT: [Inaudible]
MR. SAWYER: Well, no, sir. And it wouldn't even, aside from "establishment." And of course it wouldn't—but even on the question of sectarian practice and preferring one religion over another, Dr. Grayzel testified that the Old Testament was larded through with Christological references, as he put it. In other words, they'd gone back in translation and inserted references in things like Isaiah in such a form as to predict the coming of Christ, which he as a Jewish scholar took strong exception to, both from the standpoint of religion and scholarship.
And, secondly, you have the problem of Bible reading, as such. You see you have the problem that some sects don't believe that you should just "read" the Bible. As Dr. Grayzel says, in Judaism you don't "read" the Bible, you "study" it. And the Catholics are quite clear that the Bible should be purveyed to the members of the Catholic Church by the Church and with its explanation and with its—under its authority. So I think you ' d have that problem even with the reading of the Old Testament. And of course you'd still have the establishment problem. And I would like to—
THE COURT: [Inaudible]
MR. SAWYER: I'm sorry to say I have not, sir.
THE COURT: [Inaudible]
MR. SAWYER: I do not know if they do, sir.
THE COURT: Am I wrong in thinking that there was a time when it was thought to be a sin to print, or translate the Bible so that people could read it?
MR. SAWYER: Oh, indeed, sir. This is one of Martin Luther's quarrels. And the printing of the Bible, in the vernacular—I answer very hastily—I'm not a theologian, of course, but I understand that is quite true.
THE COURT: You are doing very well as one, I must say.
MR. SAWYER: Yes, sir. And I think that as far as proselytizing is concerned that this hook has shown an immense power to proselytize— either version—to proselytize, in 2,000 years. And I don't deplore this, but I think we should recognize it as a reality. And I—
THE COURT: [Inaudible]
MR. SAWYER: I think they are doing it for another reason, yes, sir. And I might say here that this speaking of Engel, or speaking of this other line of cases, to focus attention to what the children do or do not do, is irrelevant to the establishment clause. It may be relevant as to the free exercise clause, but it's irrelevant. It's what the state does. And in that respect you cannot distinguish Engel and Vitale unless you wish to—
THE COURT: You say that to find that the State has made a law respecting an establishment that the State need not act in a coercive way at all; that a "law" doesn't mean " coercion"?
MR. SAWYER: Not a bit, sir.
THE COURT: It means "action."
MR. SAWYER: It means "action. "
And the question must be, then, whether in fact it concerns and respects religion—and we have that question, and it's argued here because they say it concerns morality—and then, perhaps, whether it's de minimis. But it makes no difference. If you had— suppose you had an actual established church. Well, you wouldn't have any the less a violation just because people didn't have to go to it, or didn't have to have their taxes devoted to it. In fact, that gentleman that came up yesterday, who moved into a community where the Methodists had established a church and you asked whether it would be any detriment to him; I don't think there needs to be any detriment. I think he has a constitutional right to live in a society that doesn't have an established church.
THE COURT: Well what would be his standing?
MR. SAWYER: His standing, I think, would be just that.
THE COURT: Let's assume he were treated, economically and socially and personally, with the greatest respect and courtesy; that he could show no economic detriment, absolutely no social stigma, nothing; and that he was completely free, in that community, to practice his active atheism, his nonbelief, completely so and everybody respected his right to do that in that community. What standing would he have to complain?
MR. SAWYER: I think—
THE COURT: I agree—
MR. SAWYER: —he would have standing.
THE COURT: —I agree with you that it would be grossly unconstitutional under the decisions of this Court, but what would his standing be?
MR. SAWYER: I think he would have standing because I think that he has—the Constitution gives him standing because it gives him a right. And the right that it gives him, I submit to Your honor, is the right not to live in a society which has an established church. Whether or not he can demonstrate that that establishment is a detriment in some measurable way to him. It is a detriment to his rights as an American under the Constitution.
Now, that doesn't mean, Your Honor, that a dwindling modicum of establishment, down to the point of the rubric on the coin—which, if it's anything, is an establishment, I think—necessarily always—there isn't also a dwindling amount of standing. And I think when you get to that point, then standing is so miniscule, the incursion is so slight, the amount of establishment is so slight that the court dismisses it as de minimis. And probably, I would suspect, on the basis of standing.
THE COURT: Have you discussed in your brief the problem that's raised as to whether or not this is a de minimis?
MR. SAWYER: Oh, yes, sir, I have discussed that in this sense—as an establishment de minimis?
THE COURT: Yes.
MR. SAWYER: Yes, sir. I've discussed it in the sense that here you have, and we say you have, a measurable, a religious ceremony which is of measurable quantum and which has some reasonable impingement upon the individual. That secondly, the State is doing more than altering the little counters that stamp out a coin. There's necessarily some mechanism behind this. There's first the purchase, distribution of the King James version of the Bible throughout the school system; there's then the rules and regulations that I quoted; there's then the time set aside; there is the mechanism for excusing. That this is sufficient participation, active participation, by the State, when it's combined with the fact that the ceremony is so clearly religious, to take it out of the de minimis clause. Whereas the uttering of the single word or the two words "under God" is certainly much more borderline and probably de minimis.
I would like to turn, if I may, again, just a little bit to the situation in Virginia, and the reason I do so is because I think there's no clause of the First Amendment whose authorship is obvious and the background is so obvious and the situation matches ours so closely.
Both of these laws sought really very much the same objectives, as specifically expressed in the preamble of the bill there and the bill in Pennsylvania.
THE COURT: Have you happened to read a recent article in the Washburn Law College Journal? It takes the position that Madison was not responsible for the First Amendment, and that as a matter of fact, he failed to get his amendment through and that the changes that were made were so material that they took away the idea of the Virginia remonstrances.
MR. SAWYER: No, Your Honor, I have not read that article, and I hope that isn't true, not just because of this case but be cause I have always assumed so long that James Madison—I even understood that Justice Rutledge in Everson, in that tremendous dissent of his in the Everson case where he reviewed all the circumstances of that bill, that assessment fight, had indicated and I thought that he'd said that we even had drafts of earlier versions in Madison's handwriting, and—
THE COURT: I'm afraid I said it, too.
MR. SAWYER: I think you did, sir.
THE COURT: That's the reason I was disturbed by this article.
MR. SAWYER: Well, I'm disturbed by it, too, sir. I haven't read it; I shall.
But you see, it seemed to me Madison saw the problem so clearly there and it seems to me it highlights the problem—and I'm speaking now just to the establishment clause right now—because I think you have just the perfect and typical establishment here in so many ways—lesser one in extent. But what did Madison see wrong with this assessment bill after it had its excuse provision? He saw both sides of the coin. Of course, first of all, he said this is using religion as an engine of civil policy. In other words, to attain very worthy civil objectives you will use religion as your instrumentality. And we heard that argument developed at length here yesterday. And Mr. Burch, I think, fell into the exact same error as Patrick Henry when he supported this bill later on when he became Governor; and that is, this is a good thing for people and you're going to use this particular way in order to, so to speak, establish either tranquility in society or tranquility in the classroom. And after all, if it's good for school children, why isn't it good for the general public? Why not have the city council of Philadelphia pass an ordinance saying that the mayor ought to read ten verses of the Bible on every radio station every morning at a certain hour to open the day.
THE COURT: [Inaudible]
MR. SAWYER: No, I don't, sir. I'm glad it isn't tranquil and I shouldn't perhaps have used that word because I'm not sure it was the word of Counsel; but perhaps one of the members of the Bench —he did speak of authority, discipline and it kind of settled them down.
THE COURT: [Inaudible]
MR. SAWYER: Yes, sir. And I think that if it settles down children— why the schools? Why the schools? It's always the schools. Why shouldn't—if it's good for the school children, it's good for everybody. And in fact, the—
THE COURT: Are you suggesting that it would be unconstitutional for the mayor of Philadelphia, if he were so disposed and if he could get the, or pay for the radio time to read ten verses of the Bible over the radio every morning?
MR. SAWYER: Well, no, if he wanted to do it, it wouldn't be. But I said if the city council passed a statute saying he should do it and that it should be read and that the radio stations should give him the time—and you'd have less of a captive audience than you have in schools—yes, I think that would be an establishment. I don't think you could do it. As a mandated thing by the legislature, I think not.
THE COURT: Well, each one of the councilmen could do it, couldn't he, if he wanted to?
MR. SAWYER: Well, if he pays for the time.
THE COURT: That's what I say. He's got a constitutional right to do it.
MR. SAWYER: Oh, yes, sir; sure. But I'm posing a different problem. Of course he could; I have no reservation about that at all. He can do it on television if he can pay for the time or he can go on the street corner. And he's got an absolute constitutional right.
THE COURT: Do you see any conflict between these two concepts: One, that the State shall keep its hands completely off religion, must not have anything to do with it, it's left for the people voluntarily to choose it: and the other provision that says that the people shall have the right freely to exercise their religion whenever they desire?
MR. SAWYER: Yes, sir, I think there is potential conflict in those two concepts.
THE COURT: In what way?
MR. SAWYER: And I could, if I may, give you an example. The most typical one that comes to my mind is the question of chaplains in the Armed Forces. That case, if it ever comes, I think will bring into square conflict the establishment clause and the free exercise clause because it is certainly much of an establishment. You could hardly say that was de minimis. On the other hand, when the State, by its own coercive legal power physically separates a man from his religious activity, his religious sources, then you have also gravely damaged his free exercise unless you provide him with an alternative. And I don't propose to settle that question here. I would find it more comfortable to argue that the free exercise clause there prevails over establishment. That's one instance when I think they come into direct conflict.
THE COURT: What others?
MR. SAWYER: The other instance, the other kind of instance, it would seem to me, would be the taxation situation. There, you see, taking the famous text, "The power to tax is the power to destroy," taxation being an affirmative exaction by the State, you may have a free exercise conflict against an establishment conflict.
And I think there are two instances which tend to—I do not think there is a conflict here. I think Justice Stewart sees one. I do not think there is one in this case. I think they can come into conflict, and on that note, let me discuss Barnette, if I may, because I think Barnette has been, has not been cited properly here.
I understand Barnette to be a situation in which the Jehovah's Witnesses were not complaining about professions of belief and disbelief, but about the idea that to raise your hand towards the flag was—
THE COURT: Toward a graven image.
MR. SAWYER: —a violation of the graven image—right. But I submit that the flag salute—and particularly then, before it had the '54 clause in it, "under God"--the act of saluting the flag is a secular act to everyone except a Jehovah's Witness or maybe some other few sects. But it's a secular act. And that's the reason the Court there stopped short of prohibiting the activity. They simply —because it's enough there, if you simply say you, if your religion thinks of it as a religious act, you don't have to participate. But it being to everyone else a secular activity, then you have no standing— or did they ask, by the way? And that's another point: They didn't ask for it and under the doctrine of judicial parsimony why should you do it. But even if they had, you have no right to stop a secular act. It's like the conscientious objector situation: You make a special exception on the religious basis; the war goes on. That is the difference, it seems to me.
And Torcaso, by the way, is somewhat the same situation. In the first place, in Torcaso's case, he just asked for a writ of mandamus. And that's where he stopped, and that's what the Court gave him. And I don't think you were asked to do any more than that. He said, I want the office. And he brought not—he didn't ask for an injunction against the oath the way we did or anything of that—he just said, I want the office. And he used the appropriate writ for it and you granted the writ. So I—
THE COURT: Torcaso was a free exercise case—
MR. SAWYER: Yes, sir.
THE COURT: —was it not? Very clearly, a free exercise case?
MR. SAWYER: Torcaso?
THE COURT: Yes. You read this last summary paragraph—
MR. SAWYER: Yes, I think it was a free exercise case.
THE COURT: And would you say Barnette was a free exercise case?
MR. SAWYER: Most definitely. But I'm just distinguishing why you don't take the whole ceremony out: because it's a secular ceremony and not a religious one.
THE COURT: I understood. But to that particular sect, it violated their own religious principles—
MR. SAWYER: Yes, sir.
THE COURT: —to salute the flag. There are many other examples beside those you gave where there's a clear conflict between the establishment clause and the free exercise clause: prisons, State prisons, Federal prisons—
MR. SAWYER: Well, I'd apply the same rule as chaplains in the Armed Forces to the prisons. I mean, unless you're going to—you can't very well say, well, they're being punished, because then you'd be saying, well, they're being punished and part of the punishment is denial, and you wouldn't do that. So I think they're in the same category, really, as the people in the Armed Forces. The State has physically removed them from their religious sources.
THE COURT: I gathered that you suggested in your answer that if there were a conflict, or at least in that context, where there is a conflict, if you had the case before you as a judge, you would think the free exercise clause should prevail over the establishment clause.
MR. SAWYER: Chaplains? Yes, sir, I would; I would.
I was saying that it seemed to me that the vice that Madison saw in the assessment bill, of using religion as an engine of civil policy, applies here. And I cited some of the arguments that were made yesterday. Now Madison saw the other side of the coin, and I think we have that here. And that is that there's kind of a bar gain struck, because what does religion get out of the arrangement. I don't suggest anything venal, but this arrangement is typical of establishment. It gets the State's aegis in providing the milieu, the audience. Now, we're talking establishment now, aside front the excuse. But the State provides the audience. And I suggest that this kind of double accommodation, that it typifies establishment everywhere that it exists. And I think that that was in the assessment bill and I think it's here. In other words, the State lends its aegis to in some way, in some way putting an official sanction or in some way accommodating or aiding the religion or a group of religions; and in exchange, the religion is supposed to fulfill a civil end of the Slate. And there are—have been certainly in history examples of where that went terribly far indeed, where the religion was part of the repressive engine of the state, and by the same token, the religion was by the state aided in its preeminent position. We don't suggest that, but I say it's a hallmark of establishment and I think that this bill is an example of it and I think the legislature so intended here to use religion as an engine of civil policy—for very worthy causes, but I think in violation of the Constitution, nonetheless.
THE COURT: Which was the first decision of this Court which held that the Fourteenth Amendment embodied or absorbed the establishment clause?
MR. SAWYER: I think it was Murdock versus Pennsylvania, Your Honor.
MR. SAWYER: Not Cantwell versus Connecticut, but Murdock versus Pennsylvania. But I'm a little bit unsure about that; it's either one or the other of the two.
THE COURT: Well, Cantwell involved, actually involved the free exercise.
MR. SAWYER: Yes, sir.
THE COURT: But I think you're right; in dictum, it said the whole—that both were incorporated. I was wondering which case actually involved—Everson, was it? Or was there—
MR. SAWYER: Oh, where this kind of clause was involved.
THE COURT: Under the Fourteenth Amendment. Because as we all know—well, as was said earlier, States used to, long after the adoption of the First Amendment, many States had actual established religions. And a good many historians think that one of the very reasons for the establishment clause in the First Amendment was to be sure that the Federal Government didn't establish a church and to leave the States free to establish their churches if they wanted to. or not to if they didn't want to.
MR. SAWYER: I think that's a respectable historical point of view, yes, sir.
THE COURT: It was the local option idea. But now we know that the Court has held that the free exercise part of the First Amendment and at least to some extent the establishment clause part of the First Amendment has been absorbed by the Fourteenth. And I wonder which case was—was it the Everson case that first directly involved that?
MR. SAWYER: I would say Everson was the first in which that was involved, yes, sir.
THE COURT: There was a Louisiana schoolbook case, wasn't there? Well, perhaps we can—
MR. SAWYER: There was—you mean a Louisiana schoolbook case before Everson?
THE COURT: Yes.
MR. SAWYER: The purchase of schoolbooks for parochial schools.
THE COURT: That was it, I think.
THE COURT: But it's a relatively—it's a relatively recent doctrine.
MR. SAWYER: It's a relatively recent doctrine indeed, sir. I don't quarrel with that. I think it's rather firmly embedded now in a number of decisions of this Court.
THE COURT: How many? About three or four?
MR. SAWYER: Well, you've got Everson; you've got McCollum; you've got Zorach—
THE COURT: Yes; and you've got Engel.
MR. SAWYER: And you have Barnette, in a sense.
THE COURT: No, we agreed earlier that was a free exercise case.
MR. SAWYER: Oh, just on establishment—
THE COURT: And so is Torcaso.
MR. SAWYER: So is Torcaso. And now you've got Engel.
THE COURT: You have Engel.
MR. SAWYER: I think that would be it. We think, of course, that McCollum controls, too. Engel, it seems to me, just clearly controls from the standpoint of establishment. I just don't think there's any question you could possibly—you have to reexamine Engel. It's what the State's doing, as I say; acts of participation mean nothing in terms of establishment. We think McCollum controls, and so did the lower court. In Chief Judge Biggs' opinion, he so states. And I should think he'd have to because in McCollum you really had a couple of features that were really less of an establishment in one respect and certainly less in the free exercise. And now I'm on both clauses because I'm just saying the case controls. After all, in McCollum, at least the religious material was purveyed by private instructors and not by the authority of the teacher, and in a sense, that's less of an establishment. And then under the free exercise clause, two differences are that in McCollum—and this is important, I think—under free exercise you had to volunteer to get the instruction, which is certainly a lot less, I would think, a lot less of a violation than to have to volunteer out, so to speak, and decide not to have it. And the other would be that you at least got your own religion if you volunteered and you didn't get anybody else's. And the lower court thought McCollum, because they decided this case, of course, before they had the benefit of this Court's decision in the Engel case.
Well, we say that there is an establishment. In addition to that it is clear as crystal and just ingenuous to say that this doesn't prefer one religion over another. And how fine you chop it is another thing. But certainly at the grossest and the broadest and in any sense of the word it prefers Christian religions over non-Christian religions—I think it goes further than that. And that you cannot do and that the statute does.
It is a religious exercise, it seems to me; it was intended to be a religious exercise. I think it's ingenuous to suggest that the legislature had anything else in mind but that. I don't think that you can use the word "morality" to encompass all that is purveyed to the minds of children by this book. There will be many, many things read out of the King James version which will exclusively— if you can separate them, Gentlemen—but will exclusively concern religious concepts and ideas, without any distinguishable moral truth. Certainly citations could be multiplied endlessly in terns of ritual, in terms of many kinds of beliefs that are religious in nature and have if any but a most minor degree of morality. And if you are teaching morality, again, you would hardly provide for excuse, as has been pointed out. And secondly, why would you have no comment? Every other subject, secular subject that's taught is taught with comment. Why not this one?
THE COURT: Mr. Sawyer, what do you say to Mr. Ward's argument that, well, even if it is religion, it's religious—it's tradition?
MR. SAWYER: Oh, Your Honor, that's just simply saying that if the Legislature of Pennsylvania has traditionally had an act that violates the First Amendment, then it's entitled to continue.
Now, their argument goes a little further than that, because it says that the duty of government—and they use the word "government" as a whole, presumably to include the judiciary and in a sense, of course, it does—the duty of government is to be neutral about these matters and if you decide to take this practice off — out—since it is traditional, that is being unneutral. And now that just seems to me to relegate the role of the judiciary—I don't know what the function would be—as to anything that wasn't novel. The fact that it's old has, it seems to me, nothing to do with being neutral or unneutral.
We are complaining that the Legislature of Pennsylvania has been unneutral. And under the system that we have, I think we come to the judiciary to set the matter straight—if they're willing to agree with us. And this could hardly be said to be unneutral just because in addition to those facts the unneutrality, in our view, it is—the unneutrality happens to go back quite a while.
I think tradition is not to be scoffed at, but let me say this very candidly: I think it is the final arrogance to talk constantly about the religious tradition in this country and equate it with this Bible. Sure, religious tradition. Whose religious tradition? It isn't any part of the religious tradition of a substantial number of Americans, of a great many, a great many things and, really, some of the salient features of the King James version or the Douay version, for that matter. And it's just, to me, a little hit easy and I say arrogant to keep talking about our religious tradition. It suggests that the public schools, at least of Pennsylvania, are a kind of Protestant institution to which others are cordially invited. And I think to some extent they have been in our State. Nobody—and maybe in times gone by that didn't make very much difference, or that those that were injured were in perhaps legal—because of the newness of this doctrine, Your Honor—or psychological or even financial position to complain much about it.
But we have here in the schools of Pennsylvania the conducting, mandated by statute, day after day, as an exercise, the reading of the sacred book of Christianity. And I submit to you, Gentlemen, that that is as the lower court found as a fact, finding of fact, conducted there as a religious ceremony.
And I might say as a footnote to that, that the lower court found as a fact that there was a higher demeanor and standard of deportment required during this time. Now, that isn't a bad thing —if you're going to read the Bible there ought to be—but it certainly demonstrates again that if it's higher than other secular subjects, it's regarded differently and can only be regarded, I think, as a religious ceremony.
We conclude —
THE COURT: Mr. Sawyer—
MR. SAWYER: Yes, sir.
THE COURT: —the District Court didn't give any attention at all to the claim that this statute interfered with the free exercise of the plaintiffs' religion?
MR. SAWYER: Not on the second opinion, Your Honor.
THE COURT: It just didn't—
MR. SAWYER: No.
THE COURT: It decided the case entirely on the establishment clause?
MR. SAWYER: Yes, sir, they did on the second opinion.
THE COURT: Is there any evidence in the—is there any evidence at all in the record, outside of the father's subjective prophecy, as to what actually happens to any child who wants to be excused and not to listen to this?
MR. SAWYER: Nothing.
THE COURT: There's just nothing.
MR. SAWYER: There's nothing. I submit that circumstances are on record and you can judge—it's not disagreed upon that Bible reading, prayer, Pledge of Allegiance, the school announcements, follow seriatim, without any more than a decent pause. And I suggest that—I just can't see as a practical matter—and this is what Mr. Schempp said—how could you excuse the child from one and not the other unless he stands immediately outside the classroom door--which happens to be typical of punishment, but that's incidental, perhaps—but he stands immediately outside the classroom door, and when he hears the class finish the recitation of the end of the Lord's Prayer and hears the "Amen," he comes bursting back in again.
Now, whether that would be done that way or some other way, I—but I just submit as a matter of logic, he either misses the Pledge of Allegiance, which even more greatly—as Mr. Schempp testified—would compound the confusion as to what he dissents from--and there's enough equation now, it seems to me, or a possible one, and Mr. Schempp reasonably apprehended it, I think, between some religious dissent, perhaps, and then you go to atheism and that may be equated with un-Americanism, and if you're missing the flag salute—and then anyway, they miss the school announcements. That's a price he shouldn't have to pay. Why should he miss the school announcements?
THE COURT: Well, we don't know that he would, or that any body would have to pay that price or any other price, on the evidence in this record.
MR. SAWYER: No, I'm arguing that the inference—
THE COURT: That under the existing system—
MR. SAWYER: —would have to—
THE COURT: —I agree, your argument—
MR. SAWYER: No, there's no evidence, Your Honor—
THE COURT: —makes sense; but there's no evidence as to what actually would happen to any child who asked to be—who asked just not to have any part of this—
THE COURT: —religious service. And certainly it's—we cannot assume, we cannot assume that there would not be psychological or social pressures, but I don't know that we can assume that there would be, either, within the absence of evidence, can we?
MR. SAWYER: I believe you can, Your Honor. I think that the courts have done it before. I think justice Frankfurter did it in his concurring opinion in McCollum.
THE COURT: Well, then, that wasn't the Court doing it.
MR. SAWYER: Well, it wasn't the Court doing it. But I would suggest that the Court can always recognize the facts of life and take judicial notice, as Justice Frankfurter said, that children are not known for their capacity or their willingness to dissent. I think that we just know this; it's a thing in life.
THE COURT: Well, this might become the stylish thing in school not to listen to that darn prayer every morning and all, and then to be a conformist you wouldn't listen to the prayer.
MR. SAWYER: Well, there might be some people walking fifty miles to avoid it.
MR. SAWYER: Well, I just say, if I may, sir, in closing, that we rest our case most strongly on the establishment clause. We ask, as far as the Schempps are concerned, for nothing more than what I think we would suppose them to be entitled to, and that is that they do not, in complying with the State's compulsory school attendance law and sending their children there, that they don't have to at home and in the church contradict what is taught or purveyed to the children in the schools. And that, it seems to me, would be their inherent right; and that they don't have to pay any price, any price at all, no matter how slight, to avoid that.
THE COURT: Who has the right? The child or the parent?
MR. SAWYER: Both. And here both have sued. I think the McCollum case established completely—there, only Vashti McCollum, the mother, brought the suit, not the child. And interestingly enough. Your Honor, the record in the trial of that case seems to indicate—it's a symbol situation—but as I read it, it seems to indicate that one of the troubles was that Mrs. Vashti McCollum was an atheist and she was concerned because young McCollum was becoming rather interested in going to these release time ceremonies in the school.
MR. SAWYER: Well—to do it? Oh, he brought a suit—
THE COURT: Become interested in it and believing in it?
MR. SAWYER: Yes, I don't think there's any doubt—and he might be entertained as a litigant, but he wasn't. And the court there, I think recognized that the child has a right and the parent has a right, both as guardian of the child and in the parent's own right. So I think the right—in other words, to answer your question— is dual.
But you know, that McCollum situation suggests another problem here. This might create divisiveness within a single family, as we had an instance even mentioned here yesterday. And the McCollum case apparently was that, although I don't think it's in the opinion itself.
Thank you, Your Honors.
MR. CHIEF JUSTICE WARREN: Mr. Killian?
REBUTTAL ARGUMENT BY JOHN D. KILLIAN III, ESQ.,
ON BEHALF OF APPELLANTS
MR. KILLIAN: Mr. Chief Justice, Members of the Court, I will be as brief as the Court has indicated it desires me to be.
What we are concerned with here today is a practice that goes back in Pennsylvania far into the days of its history. This practice that is before the Court today is a codified practice—the codification occurred in 1913—but the practice goes back deep into the colonial days of our State. The practice is not as the other — as Mr. Sawyer indicated, a religious practice, it is an educational practice. It is a practice in the schools which has educational values. We've been talking about the moral values that are provided by this practice. It is not a religious practice.
Dr. Bain, the superintendent of public instruction, in his testimony in the lower court was asked whether this practice contained educational value, and his testimony at page 89 of the record states that he thinks that the reading of the Bible—I'll read out a few words: "...is one of the last vestiges of moral value that we have left in our school system. This stands out"—I quote him —"as a strong contradiction to the materialistic trends of our times." Certainly this practice reflects the religious origins and traditional religious leaven of our public life. The practice of reading the Bible existed in the colonial days as a reading exercise and for the purpose of moral instruction, but it is fundamentally, and has always been in Pennsylvania, an educational practice.
It would seem to me that when you're studying the arts, you have to study sacred themes; you have to study sacred music if you want to be a musician: and if you want to be a good citizen and if you want your schools to educate you that way, you must study morality. And what better source of morality is there than this Bible? The Legislature of Pennsylvania was codifying a conclusion that the people of Pennsylvania long before reached: that the Bible is a source of this morality.
Now, the decisions of this Court have made reference to the fact that we are a religious people, that there is a religious leaven in our society, and we manifest and express this religion in many ways. Many of these have been briefed and discussed in these arguments: I need not go into them. But the Court has also said in some opinions that if we're to work this leaven out of our society, we have to do it by—through the individual and through groups and not through the Government. The Government should be neutral; it should not be hostile. And we feel that the ripping out of this practice out of the public schools as an educational practice would express hostility to religion.
[Whereupon, argument in the above-entitled matter was concluded.]
[Due to an imperfect taping system and aging tapes, some passages are inaudible.]