The Meaning of the Supreme Court Decision

It was 11:30 a.m. by the bronze clock which hangs over the Supreme Court bench. Justice Tom C. Clark had been drawling over a zig-zag sewing machine patent when, with scarcely a pause, he shifted to cases 119 and 142. Clark talked for another 25 minutes. His voice trailed off as he finally announced the court’s decision against a 150-year-old American tradition of prayer and Bible reading in the public schoolroom. The decision was regarded in some quarters as imposing a restriction upon the religious practices of more Americans than any prior government action.

The court’s decision on June 17 was 8 to 1, with Justice Potter Stewart, an Episcopalian, voicing the lone dissent, just as he did in 1962 when the court struck down the 22-word interfaith prayer approved by the New York Board of Regents for use in the public schools of that state.

The court’s opinion in the 1962 case stressed that the Regents’ prayer was governmentally composed. Curiously, in the 1963 decision, one of the justices forsakes that line, and views recitation of prayers as unconstitutional irrespective of whether or not they are governmentally composed.

While banning required Bible reading and the Lord’s Prayer even as it had earlier disallowed required non-sectarian prayer, the court nonetheless put no roadblock in the way of the teaching of religion as a cultural and historical influence or in the way of objective study of the Bible as part of the instructional program. Thus it made a clear distinction between the compulsory corporate practice of religion and the objective teaching of religion (see CHRISTIANITY TODAY editorial, March 1, 1963 issue, “Is the Supreme Court on Trial?”).

Another significant aspect of the latest ruling is that the justices differ sharply on why required public school devotions are unconstitutional. Clark’s majority opinion was shared only by Chief Justice Earl Warren, Justice Hugo L. Black, and Justice Byron White.

Clark’s argument against devotional exercises in the public schools rested largely on the contention that the government must maintain an attitude of neutrality in religious matters. He said the test may be stated as follows:

“What are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.”

The longest opinion—nearly 25,000 words—was delivered by Justice William J. Brennan, Jr., the only Roman Catholic member of the court. Justice Arthur J. Goldberg, the only Jewish member, wrote a separate concurring opinion, and was joined by Justice John Marshall Harlan. Justice William O. Douglas, exponent of a far more strict separation of church and state, also wrote a concurring opinion.

The decision incorporates an element of indeterminacy in respect to devotional practices in the classroom in the absence of governmental legislation, which is the context of the latest decision. Some observers argue that a principal’s or teacher’s introduction of classroom devotions would reflect the same objection able element of compulsion, since school employees are also agents of the state and public servants. Others insist that this contention rests upon inference, is not explicitly based upon the court decision, and ignores the right of “free exercise” which is fully as constitutional as that of “separation.” Yet the conviction is widening that required public school devotionals are objectionable from the standpoint of a sound philosophy of religion, education, and freedom.

But already there is a dispute over whether the court ruled out schoolroom devotions altogether or merely banned religious exercises when state laws require them. Some state education officials said they would ignore the ruling.

With the obvious air of precluding radical interpretations, Brennan wrote: “Our decision in these cases does not clearly forecast anything about the constitutionality of other types of inter dependence between religious and other public institutions.”

In a similar vein, Goldberg declared: “Today’s decision does not mean that all incidents of government which import of the religious are therefore and without more banned by the strictures of the Establishment Clause.”

In a related case involving various religious observances in Florida’s public schools, the court issued a per curiam order vacating that state’s Supreme Court ruling upholding some of the practices and ordered re-hearings in that court “in the light of the decision” on prayer and Bible reading.

Case 142 originated in the Philadelphia suburb of Abington, where a Unitarian family protested a Pennsylvania law requiring the daily reading of passages from the Bible. The case was brought by Edward Lewis Schempp, his wife, Sidney, and their three children. The Supreme Court upheld a federal district court ruling in the Schempps’ favor.

NEWS / A fortnightly report of developments in religion

IMPACT OF THE RULING

If considerable reaction to the 1962 Supreme Court ruling against the New York Board of Regents was ill-informed and intemperate, the response to this year’s decision on schoolroom devotions marked a puzzling retreat.

The decision against prayer and Bible reading came as no surprise. The United Presbyterian Office of Information had confidently distributed a three-page advance comment for release when the court ruled. Without knowing what the ruling would say, Presbyterian officials were quoted as saying that “the court’s decision underscores our firm belief that religious instruction is the sacred responsibility of the family and the churches.”

Although this year’s ruling represented a far more extreme separation of church and state than the 1962 Regents’ prayer case, fewer church men spoke out. Many had obviously changed their minds.

Some observers predicted that practical effects of the latest ruling might be disillusioning for the laity and divisive for the church in general. Do rank and file laymen really understand why many ecclesiastical leaders countenance and even support the suppression of prayer and Bible reading in public schools?

Case 119 was brought by a Baltimore divorcee, Mrs. Madalyn Murray, on behalf of her son, William. Both professed atheists, they objected to practices in the Maryland schools such as Bible readings from the King James Version usually followed by class recitation of the Lord’s Prayer. The Supreme Court upset a Maryland Court of Appeals ruling which had upheld the practices.

Still apparently in question are such things as public school Christmas pageants and baccalaureate exercises. Many observers think they will be sacrificed next.

Several Congressmen introduced bills to amend the Constitution to provide for religious exercises in public schools, but most observers doubted that they had any chance of passage.

One immediate development will be the exploration of the larger scope the majority opinion allows to religion as content matter in the public school curriculum. Clark remarked that “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.”

Some educators say it may take 8 to 10 years to evolve a program of public education that does full justice to the religious ingredient. But others think this judgment greatly exaggerates the difficulties. Yet a single additional course embodying religious facets is viewed as a mere makeshift. More ideally the religious element would be injected throughout the curriculum wherever it is relevant. Such a program, it is widely held, would be administratively preferable to shared time proposals which in recent years have been under study by various religious leaders.

Many observers concede that were a national referendum to be held on the issue of Bible reading and prayer in public schools, the exercises would prevail.

Under proper legal procedure, the justices based their decision on the evidence submitted. The arguments in favor of retaining schoolroom devotions were presented by legal officials of the jurisdictions involved. The arguments were largely void of historic and theological foundations. Not a single church group or Christian organization availed itself of the opportunity to file a brief in support of their arguments; their case was sacrificed by default.

By contrast, six organizations went to the trouble of filing briefs against public school devotions (see CHRISTIANITY TODAY News, April 12, 1963, page 39).

Stewart commented: “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.”

Sabbatarian Victory

The U. S. Supreme Court ruled that denial of unemployment benefits to a Seventh-day Adventist because she was unavailable for Saturday work infringed on the free exercise of her religion (see CHRISTIANITY TODAY, June 7, p. 33).

The 7–2 ruling in the case of Mrs. Adell H. Sherbert reversed the decision of South Carolina’s Supreme Court. Justice William J. Brennan declared there was “no compelling state interest” to justify “the substantial infringement” of Mrs. Sherbert’s constitutional right.

Appellants’ Views

“I’m a trouble-maker at heart and don’t give a damn what people think.”

So says Mrs. Madalyn Murray, one of the appellants in the prayer-Bible reading case in whose favor the Supreme Court ruled.

Mrs. Murray and her two sons, aged 8 and 16, are professed atheists. She claims she was “converted” from Presbyterianism when she was 13.

The Murrays have undergone considerable abuse since the litigation began. Vandals marked up their back fence with the line, “Murrays are Communists.” The sons have been repeatedly heckled, the older one so much so that he brought charges against a fellow student.

Mrs. Murray is a law graduate. She was divorced from her husband, a Roman Catholic, several years ago. She supports the family with contributions that happen to come their way, plus the proceeds from articles she writes for atheist and humanist publications.

Religion channels people into inaction, she says, adding that “I would turn every church into a hospital, a sanitarium, or a school” so it would accomplish some good.

Concurring opinions were delivered by Justices William O. Douglas and Potter Stewart. Stewart said the finding for Mrs. Sherbert was inconsistent with the majority opinion in the Schempp-Murray Bible reading-prayer cases handed down the same day, and with the Sunday Blue Law decision of 1961. But since he disagreed with the majority in those decisions, he added, he now finds no difficulty in supporting Mrs. Sherbert’s claim.

Justice John Marshall Harlan, joined by Justice Byron R. White, dissented, calling the majority’s decision “disturbing both in its rejection of existing precedent and in its implications for the future.” Harlan found no religious discrimination because South Carolina denies unemployment benefits to all who are not available for work whatever the personal reason. He concludes: “I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case.”

An Evaluation

A group of prominent educators, lawyers, editors, and religious leaders,Assembled as part of thc Religious Freedom and Public Affairs Project of the National Conference of Christians and Jews: Dean Edward Barrett, Prof. William Brickman, Dan Callahan, Dr. C. Emanuel Carlson, the Rev. James Denecn, Rabhi Ira Eisenstein; the Rev. Kyle Kaseldon, Dr. Carl F. H. Henry; Dr. David Hunter; Dr. Wilber G. Katz; the Rev. William J. Kenealy, Dr. Dumont F. Kenny, Rabbi Norman Lamm, Dr. Joseph Manch, Dr. Theodore Powell, the Rev. John Reedy, the Rev. John S. Sheerin, the Rev. Roger Shinn, the Rev. John M. Swomley, Jr., the Rev. Norman Temme, Thomas J. O’Toole, the Rev. Charles Whelan, Tobe Acker, Miss Lillian Block. Dr. Sterling Bronsn, Richard Horchler, Dr. Claud Nelson, Rabbi Arthur Gilbert. The Rev. Gustave weigel and Dr. Thomas Van Loon, though not present at the meeting asked to have their names added to the statement. representing diverse religious commitments and reflecting varied reactions to the Supreme Court ruling, met in New York two days after the ruling was issued. They agreed that the court’s principle of “wholesome neutrality” is not only cognizant of religious liberty, but aware that American institutions presuppose a Supreme Being and looks favorably upon the chaplaincy, Congressional prayers, and other national practices.

The group noted that 1. the court has clarified the relation of the public school to religion; 2. its decision does not endorse irreligion or atheism in America; 3. although devotional exercises are forbidden, the court clearly allows for the objective study of religion and particularly of the Bible in the public school; 4. in a pluralistic society religious and civic groups should be encouraged to use the instrumentality of dialogue to resolve conflict; and 5. the decision challenges parents and religious leaders to shape and strengthen spiritual commitment by reliance on voluntary means, and to resist the temptation to rely on governmental institutions to create religious conviction.

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