Majority Opinion (Justice Clark)

In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws requiring them are unconstitutional under the Establishment Clause, as applied to the states through the Fourteenth Amendment …

It is true that religion has been closely identified with our history and government.… The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, “So help me God”.… Indeed, only last year an official survey of the country indicated that 64 per cent of our people have church membership, Bureau of Census, U.S. Department of Commerce, Statistical Abstract of the United States, 48 (83d ed. 1962), while less than 3 per cent profess no religion whatever.… This is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbedded in our public and private life.… This freedom of worship was indispensable in a country whose people came from the four quarters of the earth and brought with them a diversity of religious opinion. Today authorities list 83 separate religious bodies, each with memberships exceeding 50,000, existing among our people, as well as innumerable smaller groups.…

The wholesome “neutrality” of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution …

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Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools.… We agree with the [Pennsylvania] trial court’s findings as to the religious character of the exercises. Given that finding the exercises and the law requiring them are in violation of the Establishment Clause.…

The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause.… The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties”

It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secular ism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe”.… We do not agree, however, that this decision in any sense has that effect.… It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment.…

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Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion.…

In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment …

Concurring Opinion (Justice Brennan)

The Court’s historic duty to expound the meaning of the Constitution has encountered few issues more intricate or more demanding than that of the relationship between religion and the public schools.… Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government. It is therefore understandable that the constitutional prohibitions encounter their severest test when they are sought to be applied in the school classroom.…

The fact is that the line which separates the secular from the sectarian in American life is elusive. The difficulty of defining the boundary with precision inheres in a paradox central to our scheme of liberty. While our institutions reflect a firm conviction that we are a religious people, those institutions by solemn constitutional injunction may not officially involve religion in such a way as to prefer, discriminate against, or oppress, a particular sect or religion. Equally the Constitution enjoins those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice. The constitutional mandate expresses a deliberate and considered judgment that such matters are to be left to the conscience of the citizen.…

I join fully in the opinion and the judgment of the Court. I see no escape from the conclusion that the exercises called in question in these two cases violate the constitutional mandate. The reasons we gave only last Term in Engel v. Vitale, 370 U. S. 421, for finding in the New York Regents’ prayer an impermissible establishment of religion, compel the same judgment of the practices at bar. The involvement of the secular with the religious is no less intimate here; and it is constitutionally irrelevant that the State has not composed the material for the inspirational exercises presently involved.… While it is my view that not every involvement of religion in public life is unconstitutional, I consider the exercises at bar a form of involvement which clearly violates the Establishment Clause.…

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Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord’s Prayer in what few public schools existed in their day, our use of the history of their time must limit itself to broad purposes, not specific practices. By such a standard, I am persuaded, as is the Court, that the devotional exercises carried on in the Baltimore and Abington schools offend the First Amendment because they sufficiently threaten in our day those substantive evils the fear of which called forth the Establishment Clause of the First Amendment. It is “a constitution we are expounding,” and our interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society.…

Not every involvement of religion in public life violates the Establishment Clause. Our decision in these cases does not clearly forecast anything about the constitutionality of other types of interdependence between religious and other public institutions.

Concurring Opinion (Justice Goldberg)

I have no doubt as to the propriety of the decision and therefore join the opinion and judgment of the Court. The singular sensitivity and concern which surround both the legal and practical judgments involved impel me, however, to add a few words in further explication, while at the same time avoiding repetition of the carefully and ably framed examination of history and authority by my Brethren.…

The attitude of the state toward religion must be one of neutrality. But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it.…

The practices here involved do not fall within any sensible or acceptable concept of compelled or permitted accommodation and involve the state so significantly and directly in the realm of the sectarian as to give rise to those very divisive influences and inhibitions of freedom which both religion clauses of the First Amendment preclude.

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Dissenting Opinion (Justice Stewart)

I think the records in the two cases before us are so fundamentally deficient as to make impossible an informed or responsible determination of the constitutional issues presented. Specifically, I cannot agree that on these records we can say that the Establishment Clause has necessarily been violated. (Footnote: It is instructive, in this connection, to examine the complaints in the two cases before us. Neither complaint attacks the challenged practices as “establishments.” What both allege as the basis for their causes of actions are, rather, violations of religious liberty.) …

As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments. See McGowan v. Maryland, 366 U. S. 420, 440–441. Each State was left free to go its own way and pursue its own policy with respect to religion. Thus Virginia from the beginning pursued a policy of disestablishmentarianism. Massachusetts, by contrast, had an established church until well into the nineteenth century. I accept without question that the liberty guaranteed by the Fourteenth Amendment against impairment by the States embraces in full the right of free exercise of religion protected by the First Amendment, and I yield to no one in my conception of the breadth of that freedom.… I accept too the proposition that the Fourteenth Amendment has somehow absorbed the Establishment Clause, although it is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy. But I cannot agree with what seems to me the insensitive definition of the Establishment Clause contained in the Court’s opinion, nor with the different but, I think, equally mechanistic definitions contained in the separate opinions which have been filed.…

There is involved in these cases a substantial free exercise claim on the part of those who affirmatively desire to have their children’s school day open with the reading of passages from the Bible.…

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If religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.…

The Elusive Money Line

Decisions in the Supreme Court chamber last month built a higher wall of separation between church and state. But elsewhere in Washington, breaks in the wall provided increasing involvement of denominational agencies in government funds. Yet cases to test the constitutionality of such involvement seemed ever more elusive.

A seven-week campaign by the United Presbyterian Board of National Missions was climaxed when the federal government approved a $3,900,000 grant for the purchase of five United Mine Workers’ hospitals in Kentucky. The board is setting up a non-sectarian, independent corporation to buy the hospitals to keep them open. United Presbyterian officials originally sought $9,500,000 in federal funds from the Area Redevelopment Administration to purchase ten hospitals which the UMW planned to close. The other five reportedly will remain open for another year, pending additional grants.

Approval of a loan of $4,000,000 to Southern Methodist University, the largest yet approved for a private institution under the college housing program, was announced last month by the U. S. Housing and Home Finance Agency. The money will be used for dormitory and dining facilities and for enlargement of the campus power plant.

Statistics made available by the Housing and Home Finance Agency also disclosed extensive federal investments in denominational retirement homes. A survey of the statistics by the National Lutheran Council indicated that ten Luther an projects for senior citizens have received direct government loans totaling $7,987,784 since 1961, when this type of financial aid became available. In addition, agency officials were quoted as saying that they either have committed or are in the process of approving mortgage insurance totaling $26,457,890 for twenty-four Lutheran housing projects for the elderly.

Meanwhile a research grant of $823,159—one of the largest ever made to a private institution—was awarded a few days ago to Baylor University for a study of the structure of human viruses. The grant to Baylor, largest of the Southern Baptist universities, is for five years.

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Toward Transition

As racial unrest mounted across the United States last month, President Kennedy summoned to the White House some 243 religious leaders to discuss integration processes. The meeting, held in the East Room, was historic, for it marked one of the most representative gatherings of high-ranking U. S. church leaders ever held anywhere.

“Even if we disagree,” said Kennedy, “it is our responsibility to make this transition as easy as possible.”

The upshot of the meeting was the creation of a national advisory council of clergymen on civil rights. Kennedy asked J. Irwin Miller, president of the National Council of Churches, to act as chairman. Other churchmen who were present suggested further implementation through the creation of local committees.

“Let us see,” said Kennedy, “if we can make a significant break-through this summer … church by church … and community by community.”

The meeting with church leaders was one of a series the President has conducted during the race crisis. Other meetings brought together educators, businessmen, and labor leaders.

Two clergymen from the South were reported to have made pro-segregation comments in a question-and-answer period with Kennedy. One asked him whether he sought to promote racial intermarriage. Kennedy denied it.

Detailing Charity

Ecclesiastical cannons rained sharp criticism on the Internal Revenue Service last month. The provocation was a proposal to tighten charitable deduction provisions of the income tax code. At a three-hour hearing in Washington, representatives from the National Council of Churches, the American Council of Christian Churches, assorted Lutheran bodies, the United Presbyterian Foundation, and several Jewish interests peppered the government agency with charges of “unnecessary,” “discouraging,” “detrimental,” and “burdensome.”

Two aspects of the proposed additions to the tax law, the avowed purpose of which is to “require the furnishing of additional information to establish the deductibility of contributions of property, other than money, to charitable organizations,” seemed to draw greatest fire. One was a requirement that taxpayers submit with their returns “the name and address of each organization to which a contribution was made and the amount and date of the actual payment of each contribution.” The other was a demand that all donors report the specifics of non-monetary contributions, including “circumstances under which the taxpayer acquired the property” and the date.

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“The effect of these amendments is to discourage giving to charitable institutions, to make the existence of these institutions more difficult and to reduce their effectiveness,” said the Rev. Robert B. Gronlund on behalf of the American Lutheran Church.

The regulations must not, declared an NCC statement, “have the long-run effect of discouraging what heretofore has been encouraged by the tax laws of the Federal Government; namely support of the broad variety of voluntary associations of our citizens.”

ACCC representatives were more direct. “There is no doubt whatever that the proposed new regulations will deter, restrict or detrimentally influence property gifts,” declared a statement which had been submitted previously by John Wesley Rhoads. “The income tax as presently administered has been used to harass independent churches and religious institutions and agencies.”

Only the United Presbyterians appeared unruffled. “We’ll manage somehow,” declared George W. McKeag, who represented the denomination’s trustees. Nevertheless, he suggested that the proposed revisions be shelved pending the outcome of President Kennedy’s current efforts to modify the tax structure.

‘Christian Oscars’

The Tony Fontane Story, an evangelistic film chronicling the conversion of a popular singer, won top honors in the National Evangelical Film Foundation’s 1963 competition. Fontane and his wife were chosen best actor and best actress for their roles in the film. Billy Zeoli was selected best producer and Jan Sadlo best director. Fontane also was voted best male singer in the record awards.

Other film winners were Savage Flame (Cathedral), best missionary film; One Nation under God (World Wide Pictures), best musical film; Jonah (Film Services), best children’s film; Prophet From Tekoa (Broadman), best Bible story; Christian Faith In a Confused World (Family Films), best Christian life film; Beyond These Skies (Ken Anderson, Inc.), best Christian witnessing; The Minister (Video Productions), best documentary film; and Survey of the Scriptures (Moody), best filmstrip; Bob Jeffries (Gospel Films), best sup porting actor.

Record awards went to “Auca Story” (Diadem), best documentary record; the White Sisters in “Brighten the Corner” (Word), best trio record; Kurt Kaiser in “Preludes of Faith” (Word), best instrumental record; Don Lonie (Word), most unusual record; “Teen World” (Sacred), best choir record; the Melody Four Quartet in “Cascades of Blessing” (Word), best quartet record; Mary Jayne in “I Believe in Miracles” (Capitol) best female singer; and Lorin Whitney (Christian Faith), best organ record.

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Testimony Revision

The Reformed Presbyterian Church of North America, a tiny U. S. denomination which believes that the Constitution should have a Christian amendment, weathered an intense debate at its 134th Synod at Beaver Falls, Pennsylvania, last month. Key issue was over a proposal to revise the church’s official testimony on Christian citizenship, particularly a chapter which discourages participation in non-Christian, civil elections. Synod delegates were divided on how proposed re vision might be implemented. The proposal was adopted, however, by a vote of 72 to 34. It still needs approval by two-thirds of the church’s sessions and a majority of voting elders before becoming valid.

A Qualified Urge

Although it spoke brightly of its urge to merge, the Reformed Church in America tiptoed hesitantly down the ecumenical road last month. The church’s annual General Synod voted to continue ecumenical conversations with the Presbyterian Church in the U. S. (Southern), but also gave considerable hope to overtures from two Michigan classes (North and South Grand Rapids) which requested that in the event of merger, individual congregations which decided by a two-thirds vote “to retain their identity” could remain out of the merger without loss of property rights. The requests were referred to the church’s committee on ecumenics.

Dr. Bernard Brunsting, pastor of the First Reformed Church of Holland, Michigan, and president of the synod for the past year, took his eye off the ecumenical highway, urging consideration of churches not affiliated with ecumenical organizations. He urged the synod to go on record favoring closer relationships with such churches in order to recognize “our oneness with them in Christ.”

The questions of the Communist influence in the World Council of Churches since admission of Russian Orthodox churches and the role of the WCC in regard to national policy, “particularly in view of its unfortunate declaration with regard to the presence of Russian missiles in Cuba in October, 1962,” were referred for study to the denomination’s own committee on the WCC.

CHALLENGES FOR THE POPE

Pope Paul VI may be obliged to turn his attention rather quickly to Viet Nam and Spain, where incidents in recent weeks had a Middle Ages flavor. Suppressed religious minorities in these two countries have yet to feel much relief as the result of Roman Catholicism’s new posture of good will.

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American Negroes are an honored elite compared with the distraught Buddhists of Viet Nam, where Roman Catholics dominate the government. The Buddhists, to underscore their protests, have been staging severe demonstrations. At a street corner in Saigon, an aged monk poured gasoline over his body, then burned himself to death as thousands of horrified Vietnamese looked on.

In Spain, five Protestant churches are still padlocked; sixteen new ones are seeking permits to open but so far have been unsuccessful. Fines totalling some $125 have been levied against Protestant congregations within the past six months for unlawful assembly (groups of twenty or more persons outside a church building are forbidden). A young couple was arrested in Barcelona several weeks ago for distributing Gospel tracts. Two other Protestant couples, meanwhile, were denied permission to marry.

Protestants in Spain are nonetheless hopeful in view of some recent developments. The Spanish army no longer requires troops to attend Roman Catholic services, although the navy and air force still make it mandatory. Protestants still are barred from military officer-training schools.

Protestant spirits were lifted during May when Fernando Vangioni and Charles Ward, associates of evangelist Billy Graham, conducted thirty days of meetings in Madrid, Barcelona, and Galicia province. They were greeted by capacity crowds at every church. Aggregate attendance totalled 12,000, 253 of whom professed conversion. Observers said the Protestant meetings were the largest since the advent of the Franco regime.

Delegates also decided to take no action on an overture from Classis California requesting reconsideration of the church’s relationship to the WCC and the National Council of Churches in the United States.

The synod met on the campus of its Central College, at Pella, Iowa, a Dutch community which celebrates its origin with annual tulip festivals and sale of souvenir wooden shoes. Delegates faced the question of smoking, and the question of dancing on its college campuses—which has been shunted back and forth between synods and college boards in recent years—and gingerly referred both questions to its Christian action committee for study.

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Meeting in its 157th regular session, the synod elected Dr. M. Verne Oggel of the Community Reformed Church of Glen Rock, New Jersey, as president for the coming year, and Dr. Justin Vander Kolk, past president of its New Brunswick Theological Seminary, as its vice president.

The Synod made forthright and dramatic decisions on the problem of racism. It decided to “convey to the President of the United States its hearty agreement with all steps taken by his administration to eliminate racial injustice,” and to “commend the negro sit-inners and non-violent demonstrators for their courage, their willingness to suffer for the sake of freedom, and their self-discipline and non-violence in the face of extraordinary provocation.” It further decided that “a gift of money accompany our expression of commendation and encouragement to the Southern Christian Leadership Conference,” headed by Dr. Martin Luther King.

In an address to the delegates, Dr. Norman Vincent Peale challenged the wisdom and the value of the synod’s race pronouncements and gift in view of the fact that they come from a church which is outside, and remote from, the area into which they are projected.

J.D.

Family Facts

Nearly two-thirds of American women are now married before age 21, according to the Population Reference Bureau, a private research agency.

But the bureau reports indications that “early marriage and early parenthood are becoming less popular than they were in recent years.”

In a statistical account released last month, bureau researchers also noted a downward trend in the expectation of family size.

At present, average family size is approaching 3.4 children per married woman, the bureau said. If the birth rate dropped to an average of 2.27 population stability would be attained, it claimed. However, the population is continuing to grow at a rate of more than 3,000,000 per year with the present birth rate.

The bureau predicted that 1,600,000 marriages will take place in 1963 and that nearly 400,000 will end in divorce.

Although the divorce rate is now only half of the post-war peak reached in the early 1950s, almost 3,000,000 children have divorced or separated parents, the agency said.

Women are not letting early marriage interfere with their education to the extent it formerly did, the bureau said. About 12 per cent of all women attending college, or 162,000, are married, and there are 77,000 married girls attending high school.

The rate of illegitimate births continues to increase. One baby out of every twenty born in the United States this year, the bureau predicts, will be born to an unmarried mother. That would total about 224,000, compared with 141,000 in 1950 and 80,000 in 1940.

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The average woman has her last child by age 28, the bureau reported. Increasingly, women with older children are entering the labor force, with more than one-third of all wives today having jobs outside the home.

Another Honest John

The Anglican diocese of Southwark, undoubtedly the liveliest if seldom the most orthodox in England, added yet another colorful character to its staff, which includes the Bishop of Woolwich. During his installation as vice-provost and canon-residentiary of the Thames-side cathedral, the Rev. John Pearce-Higgins interrupted the service to make a spirited protest against his required as sent to the Thirty-Nine Articles. Addressing the bishop, Dr. Mervyn Stockwood, Mr. Pearce-Higgins described the Articles as “a Reformation document originally set out in all sincerity within the limitations of thought and under the stress of the theological and social pressures of the time” and as “a theological fossil embedded in the constitution of the Church of England.” He quoted a former Archbishop of York in support of his position, delineated on several of the Articles he found particularly offensive, but finally gave the general assent which is required of him by law.

The new canon is vice-chairman of the Churches’ Fellowship for Psychical and Spiritual Research, and chairman of the Modern Churchmen’s Union. Speaking to pressmen after the service he said the Article on the Resurrection was “absolute nonsense,” and added: “I say that Christ’s physical body did not rise again. His spirit rose certainly. But what is this Article suggesting … that they were practicing rocketry on the Mount of Olives in those days?”

Lord Fisher of Lambeth, former Arch bishop of Canterbury, agreed publicly that the Articles badly needed revision. Answering the criticism that the Articles reflect the beliefs of 400 years ago, Prebendary Colin Kerr, a prominent evangelical, pointed out that in fact they reflect the beliefs of nearer 2,000 years ago, being based on the Scriptures. Ventured a correspondent in the Church of England Newspaper:

“A newly installed canon must be fired sometime.”

J.D.D.

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