U.S. Supreme Court School Dist. of Abington Tp. v.
Schempp, 374
U.S. 203 (1963) School District of Abington
Township, Pennsylvania v. Schempp No. 142 Argued February 27-28,
1963 Decided June 17, 1963 374
U.S. 203 ast|>* 374
U.S. 203 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA Syllabus Because of the prohibition of the First Amendment against the
enactment by Congress of any law "respecting an establishment of
religion," which is made applicable to the States by the Fourteenth
Amendment, no state law or school board may require that passages
from the Bible be read or that the Lord's Prayer be recited in the
public schools of a State at the beginning of each school day --
even if individual students may be excused from attending or
participating in such exercises upon written request of their
parents. Pp. 374 U. S.
205 -227. 201 F.
Supp. 815 , affirmed.

															228 Md. 239, 179 A.2d 698, reversed. Page 374 U. S. 205 MR. JUSTICE CLARK delivered the opinion of the Court.

															Once again, we are called upon to consider the scope of the
provision of the First Amendment to the United States Constitution
which declares that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof. . . ." These companion cases present the issues in the
context of state action requiring that schools begin each day with
readings from the Bible. While raising the basic questions under
slightly different factual situations, the cases permit of joint
treatment. 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. I The Facts in Each Case: No. 142. The Commonwealth of
Pennsylvania, by law, 24 Pa.Stat. § 15-1516, as amended, Pub.Law
1928 (Supp. 1960) Dec. 17, 1959, requires that

															"At least ten verses from the Holy Bible shall be read, without
comment, at the opening of each public school on each school day.
Any child shall be excused from such Bible reading, or attending
such Bible reading, upon the written request of his parent or
guardian."

															The Schempp family, husband and wife and two of their three
children, brought suit to enjoin enforcement of the statute,
contending that their rights under the Fourteenth Amendment to the
Constitution of the United States are, have been, and will continue
to be, violated unless this statute be declared unconstitutional as
violative of these provisions of the First Amendment. They sought
to enjoin the appellant school district, wherein the Schempp
children attend school, and its officers and the Page 374 U. S. 206 Superintendent of Public Instruction of the Commonwealth from
continuing to conduct such readings and recitation of the Lord's
Prayer in the public schools of the district pursuant to the
statute. A three-judge statutory District Court for the Eastern
District of Pennsylvania held that the statute is violative of the
Establishment Clause of the First Amendment as applied to the
States by the Due Process Clause of the Fourteenth Amendment, and
directed that appropriate injunctive relief issue. 201 F.
Supp. 815 . [ Footnote 1 ] On
appeal by the District, its officials, and the Superintendent under
28 U.S.C. § 1253, we noted probable jurisdiction. 371 U.S. 807.

															The appellees Edward Lewis Schempp, his wife Sidney, and their
children, Roger and Donna, are of the Unitarian faith, and are
members of the Unitarian Church in Germantown, Philadelphia,
Pennsylvania, where they, as well as another son, Ellory, regularly
attend religious services. The latter was originally a party, but,
having graduated from the school system pendente lite, was
voluntarily dismissed from the action. The other children attend
the Abington Senior High School, which is a public school operated
by appellant district.

															On each school day at the Abington Senior High School between
8:15 and 8:30 a.m., while the pupils are attending their home rooms
or advisory sections, opening exercises Page 374 U. S. 207 are conducted pursuant to the statute. The exercises are
broadcast into each room in the school building through an
intercommunications system, and are conducted under the supervision
of a teacher by students attending the school's radio and
television workshop. Selected students from this course gather each
morning in the school's workshop studio for the exercises, which
include readings by one of the students of 10 verses of the Holy
Bible, broadcast to each room in the building. This is followed by
the recitation of the Lord's Prayer, likewise over the
intercommunications system, but also by the students in the various
classrooms, who are asked to stand and join in repeating the prayer
in unison. The exercises are closed with the flag salute and such
pertinent announcements as are of interest to the students.
Participation in the opening exercises, as directed by the statute,
is voluntary. The student reading the verses from the Bible may
select the passages and read from any version he chooses, although
the only copies furnished by the school are the King James version,
copies of which were circulated to each teacher by the school
district. During the period in which the exercises have been
conducted, the King James, the Douay, and the Revised Standard
versions of the Bible have been used, as well as the Jewish Holy
Scriptures. There are no prefatory statements, no questions asked
or solicited, no comments or explanations made, and no
interpretations given at or during the exercises. The students and
parents are advised that the student may absent himself from the
classroom or, should he elect to remain, not participate in the
exercises.

															It appears from the record that, in schools not having an
intercommunications, system the Bible reading and the recitation of
the Lord's Prayer were conducted by the Page 374 U. S. 208 home-room teacher, [ Footnote
2 ] who chose the text of the verses and read them herself or
had students read them in rotation or by volunteers. This was
followed by a standing recitation of the Lord's Prayer, together
with the Pledge of Allegiance to the Flag by the class in unison
and a closing announcement of routine school items of interest.

															At the first trial, Edward Schempp and the children testified as
to specific religious doctrines purveyed by a literal reading of
the Bible "which were contrary to the religious beliefs which they
held, and to their familial teaching." 177 F.
Supp. 398 , 400. The children testified that all of the
doctrines to which they referred were read to them at various times
as part of the exercises. Edward Schempp testified at the second
trial that he had considered having Roger and Donna excused from
attendance at the exercises, but decided against it for several
reasons, including his belief that the children's relationships
with their teachers and classmates would be adversely affected.
[ Footnote 3 ] Page 374 U. S. 209 Expert testimony was introduced by both appellants and appellees
at the first trial, which testimony was summarized by the trial
court as follows:

															"Dr. Solomon Grayzel testified that there were marked
differences between the Jewish Holy Scriptures and the Christian
Holy Bible, the most obvious of which was the absence of the New
Testament in the Jewish Holy Scriptures. Dr. Grayzel testified that
portions of the New Testament were offensive to Jewish tradition,
and that, from the standpoint of Jewish faith, the concept of Jesus
Christ as the Son of God was 'practically blasphemous.' He cited
instances in the New Testament which, assertedly, were not only
sectarian in nature but tended to bring the Jews into ridicule or
scorn. Dr. Grayzel gave as his expert opinion that such material
from the New Testament could be explained to Jewish children in
such a way as to do no harm to them. But if portions of the New
Testament were read without explanation, they could be, and, in his
specific experience with children, Dr. Grayzel observed, had been,
psychologically harmful to the child, and had caused a divisive
force within the social media of the school."

															"Dr. Grayzel also testified that there was significant
difference in attitude with regard to the respective Books of the
Jewish and Christian Religions in that Judaism attaches no special
significance to the reading of the Bible per se, and that
the Jewish Holy Scriptures are source materials to be studied. But
Dr. Grayzel did state that many portions of the New, Page 374 U. S. 210 as well as of the Old, Testament contained passages of great
literary and moral value."

															"Dr. Luther A. Weigle, an expert witness for the defense,
testified in some detail as to the reasons for and the methods
employed in developing the King James and the Revised Standard
Versions of the Bible. On direct examination, Dr. Weigle stated
that the Bible was nonsectarian. He later stated that the phrase
'nonsectarian' meant to him nonsectarian within the Christian
faiths. Dr. Weigle stated that his definition of the Holy Bible
would include the Jewish Holy Scriptures, but also stated that the
'Holy Bible' would not be complete without the New Testament. He
stated that the New Testament 'conveyed the message of Christians.'
In his opinion, reading of the Holy Scriptures to the exclusion of
the New Testament would be a sectarian practice. Dr. Weigle stated
that the Bible was of great moral, historical and literary value.
This is conceded by all the parties, and is also the view of the
court." 177 F.
Supp. 398 , 401-402.

															The trial court, in striking down the practices and the statute
requiring them, made specific findings of fact that the children's
attendance at Abington Senior High School is compulsory, and that
the practice of reading 10 verses from the Bible is also compelled
by law. It also found that:

															"The reading of the verses, even without comment, possesses a
devotional and religious character and constitutes, in effect, a
religious observance. The devotional and religious nature of the
morning exercises is made all the more apparent by the fact that
the Bible reading is followed immediately by a recital in unison by
the pupils of the Lord's Prayer. The fact that some pupils, or,
theoretically, all pupils, might be excused from attendance at the
exercises Page 374 U. S. 211 does not mitigate the obligatory nature of the ceremony, for . .
. Section 1516 . . . unequivocally requires the exercises to be
held every school day in every school in the Commonwealth. The
exercises are held in the school buildings, and perforce are
conducted by and under the authority of the local school
authorities, and during school sessions. Since the statute requires
the reading of the 'Holy Bible,' a Christian document, the practice
. . . prefers the Christian religion. The record demonstrates that
it was the intention of . . . the Commonwealth . . . to introduce a
religious ceremony into the public schools of the
Commonwealth."

															201 F. Supp. at 819.

															No. 119. In 1905, the Board of School Commissioners of Baltimore
City adopted a rule pursuant to Art. 77, § 202 of the Annotated
Code of Maryland. The rule provided for the holding of opening
exercises in the schools of the city, consisting primarily of the
"reading, without comment, of a chapter in the Holy Bible and/or
the use of the Lord's Prayer." The petitioners, Mrs. Madalyn Murray
and her son, William J. Murray III, are both professed atheists.
Following unsuccessful attempts to have the respondent school board
rescind the rule, this suit was filed for mandamus to compel its
rescission and cancellation. It was alleged that William was a
student in a public school of the city, and Mrs. Murray, his
mother, was a taxpayer therein; that it was the practice under the
rule to have a reading on each school morning from the King James
version of the Bible; that, at petitioners' insistence, the rule
was amended [ Footnote 4 ] to
permit children to Page 374 U. S. 212 be excused from the exercise on request of the parent, and that
William had been excused pursuant thereto; that nevertheless the
rule as amended was in violation of the petitioners' rights "to
freedom of religion under the First and Fourteenth Amendments" and
in violation of "the principle of separation between church and
state, contained therein. . . ." The petition particularized the
petitioners' atheistic beliefs and stated that the rule, as
practiced, violated their rights

															"in that it threatens their religious liberty by placing a
premium on belief as against non-belief and subjects their freedom
of conscience to the rule of the majority; it pronounces belief in
God as the source of all moral and spiritual values, equating these
values with religious values, and thereby renders sinister, alien
and suspect the beliefs and ideals of your Petitioners, promoting
doubt and question of their morality, good citizenship and good
faith."

															The respondents demurred, and the trial court, recognizing that
the demurrer admitted all facts well pleaded, sustained it without
leave to amend. The Maryland Court of Appeals affirmed, the
majority of four justices holding the exercise not in violation of
the First and Fourteenth Amendments, with three justices
dissenting. 228 Md. 239, 179 A.2d 698. We granted certiorari. 371
U.S. 809. II It is true that religion has been closely identified with our
history and government. As we said in Engel v. Vitale, 370 U. S. 421 , 370 U. S. 434 (1962),

															"The history of man is inseparable from the history of religion.
And . . . , since Page 374 U. S. 213 the beginning of that history, many people have devoutly
believed that 'More things are wrought by prayer than this world
dreams of.'"

															In Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 (1952), we gave specific recognition to the proposition that "[w]e
are a religious people whose institutions presuppose a Supreme
Being." 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." Likewise, each House of the
Congress provides through its Chaplain an opening prayer, and the
sessions of this Court are declared open by the crier in a short
ceremony, the final phrase of which invokes the grace of God.
Again, there are such manifestations in our military forces, where
those of our citizens who are under the restrictions of military
service wish to engage in voluntary worship. Indeed, only last
year, an official survey of the country indicated that 64% of our
people have church membership, Bureau of the Census, U.S.
Department of Commerce, Statistical Abstract of the United States
(83d ed.1962), 48, while less than 30% profess no religion
whatever. Id. at p. 46. It can be truly said, therefore,
that today, as in the beginning, our national life reflects a
religious people who, in the words of Madison, are

															"earnestly praying, as . . . in duty bound, that the Supreme
Lawgiver of the Universe . . . guide them into every measure which
may be worthy of his [blessing. . . ]."

															Memorial and Remonstrance Against Religious Assessments, quoted
in Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 71 -72
(1947) (Appendix to dissenting opinion of Rutledge, J.). Page 374 U. S. 214 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. Nothing but the most telling of personal experiences in
religious persecution suffered by our forebears, see Everson v.
Board of Education, supra, at 330 U. S. 8 -11,
could have planted our belief in liberty of religious opinion any
more deeply in our heritage. It is true that this liberty
frequently was not realized by the colonists, but this is readily
accountable by their close ties to the Mother Country. [ Footnote 5 ] However, the views of
Madison and Jefferson, preceded by Roger Williams, [ Footnote 6 ] came to be incorporated not only
in the Federal Constitution but likewise in those of most of our
States. This freedom to 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 membership exceeding
50,000, existing among our people, as well as innumerable smaller
groups. Bureau of the Census, op. cit. supra, at
46-47. III Almost a hundred years ago, in Minor v. Board of Education
of Cincinnati, [ Footnote
7 ] Judge Alphonso Taft, father Page 374 U. S. 215 of the revered Chief Justice, in an unpublished opinion, stated
the ideal of our people as to religious freedom as one of

															"absolute equality before the law, of all religious opinions and
sects. . . ."

															" * * * *" "The government is neutral, and, while protecting all, it
prefers none, and it disparages none."

															Before examining this "neutral" position in which the
Establishment and Free Exercise Clauses of the First Amendment
place our Government, it is well that we discuss the reach of the
Amendment under the cases of this Court.

															First, this Court has decisively settled that the First
Amendment's mandate that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof" has been made wholly applicable to the States by the
Fourteenth Amendment. Twenty-three years ago, in Cantwell v.
Connecticut, 310 U. S. 296 , 310 U. S. 303 (1940), this Court, through Mr. Justice Roberts, said:

															"The fundamental concept of liberty embodied in that
[Fourteenth] Amendment embraces the liberties guaranteed by the
First Amendment. The First Amendment declares that Congress shall
make no law respecting an establishment of religion or prohibiting
the free exercise thereof. The Fourteenth Amendment Page 374 U. S. 216 has rendered the legislatures of the states as incompetent as
Congress to enact such laws. [ Footnote 8 ]"

															In a series of cases since Cantwell, the Court has
repeatedly reaffirmed that doctrine, and we do so now. Murdock
v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 (1943); Everson v. Board of Education, supra; Illinois ex rel.
McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S.
210 -211 (1948); Zorach v. Clauson, supra; McGowan v.
Maryland, 366 U. S. 420 (1961); Torcaso v. Watkins, 367 U.
S. 488 (1961), and Engel v. Vitale, supra. Second, this Court has rejected unequivocally the contention
that the Establishment Clause forbids only governmental preference
of one religion over another. Almost 20 years ago in Everson,
supra, at 330 U. S. 15 , the
Court said that

															"[n]either a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all
religions, or prefer one religion over another."

															And Mr. Justice Jackson, dissenting, agreed:

															"There is no answer to the proposition . . . that the effect of
the religious freedom Amendment to our Constitution was to take
every form of propagation of religion out of the realm of things
which could directly or indirectly be made public business, and
thereby be supported in whole or in part at taxpayers' expense. . .
. This freedom was first in the Bill of Rights because it was first
in the forefathers' minds; it was set forth in absolute terms, and
its strength is its rigidity." Id. at 330 U. S. 26 . Page 374 U. S. 217 Further, Mr. Justice Rutledge, joined by Justices Frankfurter,
Jackson and Burton, declared:

															"The [First] Amendment's purpose was not to strike merely at the
official establishment of a single sect, creed or religion,
outlawing only a formal relation such as had prevailed in England
and some of the colonies. Necessarily, it was to uproot all such
relationships. But the object was broader than separating church
and state in this narrow sense. It was to create a complete and
permanent separation of the spheres of religious activity and civil
authority by comprehensively forbidding every form of public aid or
support for religion." Id. at 330 U. S. 31 -32.
The same conclusion has been firmly maintained ever since that
time, see Illinois ex rel. McCollum, supra, at pp. 333 U. S.
210 -211; McGowan v. Maryland, supra, at 366 U. S.
442 -443; Torcaso v. Watkins, supra, at 367 U. S.
492 -493, 367 U. S. 495 ,
and we reaffirm it now.

															While none of the parties to either of these cases has
questioned these basic conclusions of the Court, both of which have
been long established, recognized, and consistently reaffirmed,
others continue to question their history, logic and efficacy. Such
contentions, in the light of the consistent interpretation in cases
of this Court, seem entirely untenable, and of value only as
academic exercises. IV The interrelationship of the Establishment and the Free Exercise
Clauses was first touched upon by Mr. Justice Roberts for the Court
in Cantwell v. Connecticut, supra, at 310 U. S.
303 -304, where it was said that their "inhibition of
legislation" had

															"a double aspect. On the one hand, it forestalls compulsion by
law of the acceptance of any creed or the practice of any form of
worship. Freedom of Page 374 U. S. 218 conscience and freedom to adhere to such religious organization
or form of worship as the individual may choose cannot be
restricted br law. On the other hand, it safeguards the free
exercise of the chosen form of religion. Thus, the Amendment
embraces two concepts -- freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the second cannot
be."

															A half dozen years later in Everson v. Board of Education,
supra, at 330 U. S. 14 -15,
this Court, through MR. JUSTICE BLACK, stated that the "scope of
the First Amendment . . . was designed forever to suppress" the
establishment of religion or the prohibition of the free exercise
thereof. In short, the Court held that the Amendment

															"requires the state to be a neutral in its relations with groups
of religious believers and nonbelievers; it does not require the
state to be their adversary. State power is no more to be used so
as to handicap religions than it is to favor them." Id. at 330 U. S. 18 . And
Mr. Justice Jackson, in dissent, declared that public schools are
organized

															"on the premise that secular education can be isolated from all
religious teaching so that the school can inculcate all needed
temporal knowledge and also maintain a strict and lofty neutrality
as to religion. The assumption is that, after the individual has
been instructed in worldly wisdom, he will be better fitted to
choose his religion." Id. at 330 U. S. 23 -24.
Moreover, all of the four dissenters, speaking through Mr. Justice
Rutledge, agreed that

															"Our constitutional policy . . . does not deny the value or the
necessity for religious training, teaching or observance. Rather,
it secures their free exercise. But, to that end, it does deny that
the state can undertake or sustain them in any form or degree. For
this Page 374 U. S. 219 reason, the sphere of religious activity, as distinguished from
the secular intellectual liberties, has been given the two-fold
protection, and, as the state cannot forbid, neither can it perform
or aid in performing, the religious function. The dual prohibition
makes that function altogether private." Id. at 330 U. S. 52 .

															Only one year later, the Court was asked to reconsider and
repudiate the doctrine of these cases in McCollum v. Board of
Education. It was argued that,

															"historically, the First Amendment was intended to forbid only
government preference of one religion over another. . . . In
addition, they ask that we distinguish or overrule our holding in
the Everson case that the Fourteenth Amendment made the
'establishment of religion' clause of the First Amendment
applicable as a prohibition against the States."

															333 U.S. at 333 U. S. 211 .
The Court, with Mr. Justice Reed alone dissenting, was unable to
"accept either of these contentions." Ibid. Mr. Justice
Frankfurter, joined by Justices Jackson, Rutledge and Burton, wrote
a very comprehensive and scholarly concurrence in which he said
that

															"[s]eparation is a requirement to abstain from fusing functions
of Government and of religious sects, not merely to treat them all
equally." Id. at 333 U. S. 227 .
Continuing, he stated that:

															"the Constitution . . . prohibited the Government common to all
from becoming embroiled, however innocently, in the destructive
religious conflicts of which the history of even this country
records some dark pages." Id. at 333 U. S.
228 .

															In 1952, in Zorach v. Clauson, supra, MR. JUSTICE
DOUGLAS, for the Court, reiterated:

															"There cannot be the slightest doubt that the First Amendment
reflects the philosophy that Church and State should be separated.
And, so far as interference with the 'free exercise' of religion
and an Page 374 U. S. 220 'establishment' of religion are concerned, the separation must
be complete and unequivocal. The First Amendment, within the scope
of its coverage, permits no exception; the prohibition is absolute.
The First Amendment, however, does not say that, in every and all
respects, there shall be a separation of Church and State. Rather,
it studiously defines the manner, the specific ways, in which there
shall be no concert or union or dependency one on the other. That
is the common sense of the matter."

															343 U.S. at 343 U. S.
312 .

															And then, in 1961, in McGowan v. Maryland and in Torcaso v. Watkins, each of these cases was discussed and
approved. CHIEF JUSTICE WARREN, in McGowan, for a
unanimous Court on this point, said:

															"But the First Amendment, in its final form, did not simply bar
a congressional enactment establishing a church; it
forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a 'broad interpretation .
. . in the light of its history and the evils it was designed
forever to suppress. . . .'"

															366 U.S. at 366 U. S.
441 -442. And MR. JUSTICE BLACK, for the Court, in Torcaso, without dissent but with Justices Frankfurter and
HARLAN concurring in the result, used this language:

															"We repeat and again reaffirm that neither a State nor the
Federal Government can constitutionally force a person 'to profess
a belief or disbelief in any religion.' Neither can
constitutionally pass laws or impose requirements which aid all
religions as against nonbelievers, and neither can aid those
religions based on a belief in the existence of God as against
those religions founded on different beliefs."

															367 U.S. at 367 U. S.
495 .

															Finally, in Engel v. Vitale, only last year, these
principles were so universally recognized that the Court,
without Page 374 U. S. 221 the citation of a single case and over the sole dissent of MR.
JUSTICE STEWART, reaffirmed them. The Court found the 22-word
prayer used in "New York's program of daily classroom invocation of
God's blessings as prescribed in the Regents' prayer . . . [to be]
a religious activity." 370 U.S. at 370 U. S. 424 .
It held that

															"it is no part of the business of government to compose official
prayers for any group of the American people to recite as a part of
a religious program carried on by government." Id. at 370 U. S. 425 .
In discussing the reach of the Establishment and Free Exercise
Clauses of the First Amendment, the Court said:

															"Although these two clauses may in certain instances overlap,
they forbid two quite different kinds of governmental encroachment
upon religious freedom. The Establishment Clause, unlike the Free
Exercise Clause, does not depend upon any showing of direct
governmental compulsion, and is violated by the enactment of laws
which establish an official religion, whether those laws operate
directly to coerce nonobserving individuals or not. This is not to
say, of course, that laws officially prescribing a particular form
of religious worship do not involve coercion of such individuals.
When the power, prestige and financial support of government is
placed behind a particular religious belief, the indirect coercive
pressure upon religious minorities to conform to the prevailing
officially approved religion is plain." Id. at 370 U. S.
430 -431. And, in further elaboration, the Court found
that the

															"first and most immediate purpose [of the Establishment Clause]
rested on the belief that a union of government and religion tends
to destroy government and to degrade religion." Id. at 370 U. S. 431 .
When government, the Court said, allies itself with one particular
form of religion, the Page 374 U. S. 222 inevitable result is that it incurs "the hatred, disrespect and
even contempt of those who held contrary beliefs." Ibid. V 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 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. That is to say that, to withstand the strictures of
the Establishment Clause, there must be a secular legislative
purpose and a primary effect that neither advances nor inhibits
religion. Everson v. Board of Education, supra; McGowan v.
Maryland, supra, at 366 U. S. 442 .
The Free Exercise Clause, likewise considered many times here,
withdraws from legislative power, state and federal, the exertion
of any restraint on the free exercise Page 374 U. S. 223 of religion. Its purpose is to secure religious liberty in the
individual by prohibiting any invasions thereof by civil authority.
Hence, it is necessary in a free exercise case for one to show the
coercive effect of the enactment as it operates against him in the
practice of his religion. The distinction between the two clauses
is apparent -- a violation of the Free Exercise Clause is
predicated on coercion, while the Establishment Clause violation
need not be so attended.

															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. None
of these factors, other than compulsory school attendance, was
present in the program upheld in Zorach v. Clauson. The
trial court in No. 142 has found that such an opening exercise is a
religious ceremony, and was intended by the State to be so. We
agree with the trial court's finding 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.

															There is no such specific finding as to the religious character
of the exercises in No. 119, and the State contends (as does the
State in No. 142) that the program is an effort to extend its
benefits to all public school children without regard to their
religious belief. Included within its secular purposes, it says,
are the promotion of moral values, the contradiction to the
materialistic trends of our times, the perpetuation of our
institutions and the teaching of literature. The case came up Page 374 U. S. 224 on demurrer, of course, to a petition which alleged that the
uniform practice under the rule had been to read from the King
James version of the Bible, and that the exercise was sectarian.
The short answer, therefore, is that the religious character of the
exercise was admitted by the State. But even if its purpose is not
strictly religious, it is sought to be accomplished through
readings, without comment, from the Bible. Surely the place of the
Bible as an instrument of religion cannot be gainsaid, and the
State's recognition of the pervading religious character of the
ceremony is evident from the rule's specific permission of the
alternative use of the Catholic Douay version, as well as the
recent amendment permitting nonattendance at the exercises. None of
these factors is consistent with the contention that the Bible is
here used either as an instrument for nonreligious moral
inspiration or as a reference for the teaching of secular
subjects.

															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.
[ Footnote 9 ] Nor are these
required exercises mitigated by the fact that individual students
may absent Page 374 U. S. 225 themselves upon parental request, for that fact furnishes no
defense to a claim of unconstitutionality under the Establishment
Clause. See Engel v. Vitale, supra, at 370 U. S. 430 .
Further, it is no defense to urge that the religious practices here
may be relatively minor encroachments on the First Amendment. 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."
Memorial and Remonstrance Against Religious Assessments, quoted in Everson, supra, at 330 U. S. 65 .

															It is insisted that, unless these religious exercises are
permitted, a "religion of secularism" is established in the
schools. We agree, of course, that the State may not establish a
"religion of secularism" in the sense of affirmatively opposing or
showing hostility to religion, thus "preferring those who believe
in no religion over those who do believe." Zorach v. Clauson,
supra, at 343 U. S. 314 .
We do not agree, however, that this decision in any sense has that
effect. In addition, it might well be said that one's education is
not complete without a study of comparative religion or the history
of religion and its relationship to the advancement of
civilization. It certainly may be said that the Bible is worthy of
study for its literary and historic qualities. Nothing we have said
here indicates that such study of the Bible or of religion, when
presented objectively as part of a secular program of education,
may not be effected consistently with the First Amendment. But the
exercises here do not fall into those categories. They are
religious exercises, required by the States in violation of the
command of the First Amendment that the Government maintain strict
neutrality, neither aiding nor opposing religion.

															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 Page 374 U. S. 226 affected, collides with the majority's right to free exercise of
religion. [ Footnote 10 ]
While the Free Exercise Clause clearly prohibits the use of state
action to deny the rights of free exercise to anyone, it
has never meant that a majority could use the machinery of the
State to practice its beliefs. Such a contention was effectively
answered by Mr. Justice Jackson for the Court in West Virginia
Board of Education v. Barnette, 319 U.
S. 624 , 319 U. S. 638 (1943):

															"The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish
them as legal principles to be applied by the courts. One's right
to . . . freedom of worship . . . and other fundamental rights may
not be submitted to vote; they depend on the outcome of no
elections."

															The place of religion in our society is an exalted one, achieved
through a long tradition of reliance on the home, the church and
the inviolable citadel of the individual heart and mind. We have
come to recognize through bitter experience that it is not within
the power of government to invade that citadel, whether its purpose
or effect be to aid or oppose, to advance or retard. In the
relationship between man and religion, the State is firmly
committed to a position of neutrality. Though the application of
that rule requires interpretation of a delicate sort, the rule
itself is clearly and concisely stated in the words of the First
Amendment. Applying that rule to the facts of these cases, we
affirm the judgment in No. 142. Page 374 U. S. 227 In No. 119, the judgment is reversed, and the cause remanded to
the Maryland Court of Appeals for further proceedings consistent
with this opinion It is so ordered. * Together with No. 119, Murray et al. v. Curlett et al.,
Constituting the Board of School Commissioners of Baltimore
City, on certiorari to the Court of Appeals of Maryland,
argued February 27, 1963.

															[ Footnote 1 ]

															The action was brought in 1958, prior to the 1959 amendment of §
15-1516 authorizing a child's nonattendance at the exercises upon
parental request. The three-judge court held the statute and the
practices complained of unconstitutional under both the
Establishment Clause and the Free Exercise Clause. 177 F.
Supp. 398 . Pending appeal to this Court by the school district,
the statute was so amended, and we vacated the judgment and
remanded for further proceedings. 364 U. S. 298 . The
same three-judge court granted appellees' motion to amend the
pleadings, 195 F. Supp. 518, held a hearing on the amended
pleadings and rendered the judgment, 201 F.
Supp. 815 , from which appeal is now taken.

															[ Footnote 2 ]

															The statute, as amended, imposes no penalty upon a teacher
refusing to obey its mandate. However, it remains to be seen
whether one refusing could have his contract of employment
terminated for "willful violation of the school laws." 24 Pa.Stat.
(Supp. 1960) § 11-1122.

															[ Footnote 3 ]

															The trial court summarized his testimony as follows:

															"Edward Schempp, the children's father, testified that, after
careful consideration, he had decided that he should not have Roger
or Donna excused from attendance at these morning ceremonies. Among
his reasons were the following. He said that he thought his
children would be "labeled as odd balls'" before their teachers
and classmates every school day; that children, like Roger's and
Donna's classmates, were liable "to lump all particular religious
difference[s] or religious objections [together] as `atheism,'" and
that, today, the word "atheism" is often connected with "atheistic
communism," and has "very bad" connotations, such as "un-American"
or "anti-Red," with overtones of possible immorality. Mr. Schempp
pointed out that, due to the events of the morning exercises
following in rapid succession, the Bible reading, the Lord's
Prayer, the Flag Salute, and the announcements, excusing his
children from the Bible reading would mean that probably they would
miss hearing the announcements so important to children. He
testified also that, if Roger and Donna were excused from Bible
reading, they would have to stand in the hall outside their
"homeroom," and that this carried with it the imputation of
punishment for bad conduct." 201 F. Supp. at 818.

															[ Footnote 4 ]

															The rule as amended provides as follows:

															"Opening Exercises. Each school, either collectively or in
classes, shall be opened by the reading, without comment, of a
chapter in the Holy Bible and/or the use of the Lord's Prayer. The
Douay version may be used by those pupils who prefer it.
Appropriate patriotic exercises should be held as a part of the
general opening exercise of the school or class. Any child shall be
excused from participating in the opening exercises or from
attending the opening exercises upon the written request of his
parent or guardian."

															[ Footnote 5 ]

															There were established churches in at least eight of the
original colonies, and various degrees of religious support in
others as late as the Revolutionary War. See Engel v. Vitale,
supra, at 370 U. S. 428 ,
n. 10.

															[ Footnote 6 ]

															"There goes many a ship to sea, with many hundred souls in one
ship, whose weal and woe is common, and is a true picture of a
commonwealth, or human combination, or society. It hath fallen out
sometimes that both Papists and Protestants, Jews and Turks, may be
embarked in one ship; upon which supposal, I affirm that all the
liberty of conscience I ever pleaded for turns upon these two
hinges, that none of the Papists, Protestants, Jews, or Turks be
forced to come to the ship's prayers or worship, nor compelled from
their own particular prayers or worship, if they practice any."

															[ Footnote 7 ]

															Superior Court of Cincinnati, February, 1870. The opinion is not
reported, but is published under the title The Bible in the Common
Schools (Cincinnati: Robert Clarke & Co. 1870). Judge Taft's
views, expressed in dissent, prevailed on appeal. See Board of
Educational of Cincinnati v. Minor, 23 Ohio St. 211, 253
(1872), in which the Ohio Supreme Court held that:

															"The great bulk of human affairs and human interests is left by
any free government to individual enterprise and individual action.
Religion is eminently one of these interests, lying outside the
true and legitimate province of government."

															[ Footnote 8 ]

															Application to the States of other clauses of the First
Amendment obtained even before Cantwell. Almost 40 years
ago, in the opinion of the Court in Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 (1925), Mr. Justice Sanford said:

															"For present purposes, we may and do assume that freedom of
speech and of the press -- which are protected by the First
Amendment from abridgment by Congress -- are among the fundamental
personal rights and 'liberties' protected by the due process clause
of the Fourteenth Amendment from impairment by the States."

															[ Footnote 9 ]

															It goes without saying that the laws and practices involved here
can be challenged only by persons having standing to complain. But
the requirements for standing to challenge state action under the
Establishment Clause, unlike those relating to the Free Exercise
Clause, do not include proof that particular religious freedoms are
infringed. McGowan v. Maryland, supra, at 366 U. S.
429 -430. The parties here are school children and their
parents, who are directly affected by the laws and practices
against which their complaints are directed. These interests surely
suffice to give the parties standing to complain. See Engel v.
Vitale, supra. Cf. McCollum v. Board of Education, supra;
Everson v. Board of Education, supra. Compare Doremus v.
Board of Education, 342 U. S. 429 (1952), which involved the same substantive issues presented here.
The appeal was there dismissed upon the graduation of the school
child involved and because of the appellants' failure to establish
standing as taxpayers.

															[ Footnote 10 ]

															We are not, of course, presented with, and therefore do not pass
upon, a situation such as military service, where the Government
regulates the temporal and geographic environment of individuals to
a point that, unless it permits voluntary religious services to be
conducted with the use of government facilities, military personnel
would be unable to engage in the practice of their faiths.

															MR. JUSTICE DOUGLAS, concurring.

															I join the opinion of the Court and add a few words in
explanation.

															While the Free Exercise Clause of the First Amendment is written
in terms of what the State may not require of the individual, the
Establishment Clause, serving the same goal of individual religious
freedom, is written in different terms.

															Establishment of a religion can be achieved in several ways. The
church and state can be one; the church may control the state, or
the state may control the church; or the relationship may take one
of several possible forms of a working arrangement between the two
bodies. [ Footnote 2/1 ] Under all of
these arrangements, the church typically has a place in the state's
budget, and church law usually governs such matters as baptism,
marriage, divorce and separation, at least for its members and
sometimes for the entire body politic. [ Footnote 2/2 ] Education, too, is usually high on the
priority Page 374 U. S. 228 list of church interests. [ Footnote
2/3 ] In the past, schools were often made the exclusive
responsibility of the church. Today, in some state-church
countries, the state runs the public schools, but compulsory
religious exercises are often required of some or all students.
Thus, under the agreement Franco made with the Holy See when he
came to power in Spain,

															"The Church regained its place in the national budget. It
insists on baptizing all children, and has made the catechism
obligatory in state schools. [ Footnote
2/4 ]"

															The vice of all such arrangements under the Establishment Clause
is that the state is lending its assistance to a church's efforts
to gain and keep adherents. Under the First Amendment, it is
strictly a matter for the individual and his church as to what
church he will belong to and how much support, in the way of
belief, time, activity or money, he will give to it. "This pure
Religious Liberty"

															"declared . . . [all forms of church-state relationships] and
their fundamental idea to be oppressions of conscience and
abridgments of that liberty which God and nature had conferred on
every living soul. [ Footnote
2/5 ]"

															In these cases, we have no coercive religious exercise aimed at
making the students conform. The prayers announced are not
compulsory, though some may think they have that indirect effect
because the nonconformist student may be induced to participate for
fear of being called an "oddball." But that coercion, if it be
present, Page 374 U. S. 229 has not been shown; so the vices of the present regimes are
different.

															These regimes violate the Establishment Clause in two different
ways. In each case, the State is conducting a religious exercise;
and, as the Court holds, that cannot be done without violating the
"neutrality" required of the State by the balance of power between
individual, church and state that has been struck by the First
Amendment. But the Establishment Clause is not limited to
precluding the State itself from conducting religious exercises. It
also forbids the State to employ its facilities or funds in a way
that gives any church, or all churches, greater strength in our
society than it would have by relying on its members alone. Thus,
the present regimes must fall under that clause for the additional
reason that public funds, though small in amount, are being used to
promote a religious exercise. Through the mechanism of the State,
all of the people are being required to finance a religious
exercise that only some of the people want and that violates the
sensibilities of others.

															The most effective way to establish any institution is to
finance it, and this truth is reflected in the appeals by church
groups for public funds to finance their religious schools.
[ Footnote 2/6 ] Financing a church
either in its strictly religious activities or in its other
activities is equally unconstitutional, as I understand the
Establishment Clause. Budgets for one activity may be technically
separable from budgets for others. [ Footnote 2/7 ] But the institution is an inseparable
whole, a living organism, which is strengthened in proselytizing
when it is strengthened in any department by contributions from
other than its own members. Page 374 U. S. 230 Such contributions may not be made by the State even in a minor
degree without violating the Establishment Clause. It is not the
amount of public funds expended; as this case illustrates, it is
the use to which public funds are put that is controlling. For the
First Amendment does not say that some forms of establishment are
allowed; it says that "no law respecting an establishment of
religion" shall be made. What may not be done directly may not be
done indirectly, lest the Establishment Clause become a
mockery.

															[ Footnote 2/1 ] See Bates, Religious Liberty: An Inquiry (1945), 9-14,
239-252; Cobb, Religious Liberty in America (1902), 1-2, cc. IV, V;
Gledhill, Pakistan, The Development of its Laws and Constitution (8
British Commonwealth, 1957), 11-15; Keller, Church and State on the
European Continent (1936), c. 2; Pfeffer, Church, State, and
Freedom (1953), c. 2; I Stokes, Church and State in the United
States (1950), 151-169.

															[ Footnote 2/2 ] See III Stokes, op. cit. supra, 374
U.S. 203 fn2/1|>n. 1, 42-67; Bates, op. cit. supra, 374
U.S. 203 fn2/1|>n. 1, 9-11, 58-59, 98, 245; Gledhill, op.
cit. supra, 374
U.S. 203 fn2/1|>n. 1, 128, 192, 205, 208; Rackman, Israel's
Emerging Constitution (1955), 120-134; Drinan, Religious Freedom in
Israel, America (Apr. 6, 1963), 456-457.

															[ Footnote 2/3 ] See II Stokes, op. cit. supra, 374
U.S. 203 fn2/1|>n. 1, 488-548; Boles, The Bible, Religion,
and the Public Schools (2d ed.1963), 4-10; Rackman, op. cit.
supra, 374
U.S. 203 fn2/2|>n. 2, at 136-141; O'Brien, The Engel Case From A Swiss Perspective, 61 Mich.L.Rev. 1069; Freund, Muslim
Education in West Pakistan, 56 Religious Education 31.

															[ Footnote 2/4 ]

															Bates, op. cit. supra, 374
U.S. 203 fn2/1|>n. 1, at 18; Pfeffer, op. cit.
supra, 374
U.S. 203 fn2/1|>n. 1, at 28-31; Thomas, The Balance of Forces
in Spain, 41 Foreign Affairs 208, 210.

															[ Footnote 2/5 ]

															Cobb, op. cit. supra, 374
U.S. 203 fn2/1|>n. 1, at 2.

															[ Footnote 2/6 ] See II Stokes, op. cit. supra, 374
U.S. 203 fn2/1|>n. 1, at 681-695.

															[ Footnote 2/7 ] See Accountants' Handbook (4th ed.1956) 4.8-4.15.

															MR. JUSTICE BRENNAN, concurring.

															Almost a century and a half ago, John Marshall, in M'Culloch v.
Maryland , enjoined: ". . . we must never forget,
that it is a constitution we are expounding." 4 Wheat.
316, 17 U. S. 407 .
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. Since undoubtedly we are "a religious people whose
institutions presuppose a Supreme Being," Zorach v.
Clauson, 343 U. S. 306 , 343 U. S. 313 ,
deep feelings are aroused when aspects of that relationship are
claimed to violate the injunction of the First Amendment that
government may make "no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . ."
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. Nevertheless it is this Court's
inescapable duty to declare whether exercises in the public schools
of the States, such as those of Pennsylvania and Maryland
questioned here, are involvements of religion in public
institutions of a kind which offends the First and Fourteenth
Amendments. Page 374 U. S. 231 When John Locke ventured in 1689,

															"I esteem it above all things necessary to distinguish exactly
the business of civil government from that of religion and to
settle the just bounds that lie between the one and the other,
[ Footnote 3/1 ]"

															he anticipated the necessity which would be thought by the
Framers to require adoption of a First Amendment, but not the
difficulty that would be experienced in defining those "just
bounds." 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, and declares as a basic postulate of the relation between
the citizen and his government that "the rights of conscience are,
in their nature, of peculiar delicacy, and will little bear the
gentlest touch of governmental hand. . . ." [ Footnote 3/2 ]

															I join fully in the opinion and the judgment of the Court. I see
no escape from the conclusion that the exercises Page 374 U. S. 232 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. It should be unnecessary to observe that our
holding does not declare that the First Amendment manifests
hostility to the practice or teaching of religion, but only applies
prohibitions incorporated in the Bill of Rights in recognition of
historic needs shared by Church and State alike. 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.

															The importance of the issue and the deep conviction with which
views on both sides are held seem to me to justify detailing at
some length my reasons for joining the Court's judgment and
opinion. I The First Amendment forbids both the abridgment of the free
exercise of religion and the enactment of laws "respecting an
establishment of religion." The two clauses, although distinct in
their objectives and their applicability, emerged together from a
common panorama of history. The inclusion of both restraints upon
the power of Congress to legislate concerning religious matters
shows unmistakably that the Framers of the First Amendment were not
content to rest the protection of religious liberty exclusively
upon either clause. "In assuring the free exercise of religion,"
Mr. Justice Frankfurter has said, Page 374 U. S. 233 "the Framers of the First Amendment were sensitive to the then
recent history of those persecutions and impositions of civil
disability with which sectarian majorities in virtually all of the
Colonies had visited deviation in the matter of conscience. This
protection of unpopular creeds, however, was not to be the full
extent of the Amendment's guarantee of freedom from governmental
intrusion in matters of faith. The battle in Virginia, hardly four
years won, where James Madison had led the forces of
disestablishment in successful opposition to Patrick Henry's
proposed Assessment Bill levying a general tax for the support of
Christian teachers, was a vital and compelling memory in 1789." McGowan v. Maryland, 366 U. S. 420 , 366 U. S.
464 -465.

															It is true that the Framers' immediate concern was to prevent
the setting up of an official federal church of the kind which
England and some of the Colonies had long supported. But nothing in
the text of the Establishment Clause supports the view that the
prevention of the setting up of an official church was meant to be
the full extent of the prohibitions against official involvements
in religion. It has rightly been said:

															"If the framers of the Amendment meant to prohibit Congress
merely from the establishment of a 'church,' one may properly
wonder why they didn't so state. That the words church and religion were regarded as synonymous seems highly
improbable, particularly in view of the fact that the contemporary
state constitutional provisions dealing with the subject of
establishment used definite phrases such as 'religious sect,'
'sect,' or 'denomination.' . . . With such specific wording in
contemporary state constitutions, why was not a similar wording
adopted for the First Amendment if its framers intended to prohibit
nothing more than what the States were prohibiting? " Page 374 U. S. 234 Lardner, How Far Does the Constitution Separate Church and
State? 45 Am.Pol.Sci.Rev. 110, 112 (1951).

															Plainly, the Establishment Clause, in the contemplation of the
Framers, "did not limit the constitutional proscription to any
particular, dated form of state-supported theological venture."

															"What Virginia had long practiced, and what Madison, Jefferson
and others fought to end, was the extension of civil government's
support to religion in a manner which made the two in some degree
interdependent, and thus threatened the freedom of each. The
purpose of the Establishment Clause was to assure that the national
legislature would not exert its power in the service of any purely
religious end; that it would not, as Virginia and virtually all of
the Colonies had done, make of religion, as religion, an object of
legislation. . . . The Establishment Clause withdrew from the
sphere of legitimate legislative concern and competence a specific,
but comprehensive, area of human conduct: man's belief or disbelief
in the verity of some transcendental idea and man's expression in
action of that belief or disbelief." McGowan v. Maryland, supra, at 366 U. S.
465 -466 (opinion of Frankfurter, J.).

															In sum, the history which our prior decisions have summoned to
aid interpretation of the Establishment Clause permits little doubt
that its prohibition was designed comprehensively to prevent those
official involvements of religion which would tend to foster or
discourage religious worship or belief.

															But an awareness of history and an appreciation of the aims of
the Founding Fathers do not always resolve concrete problems. The
specific question before us has, for example, aroused vigorous
dispute whether the architects of the First Amendment -- James
Madison and Thomas Jefferson particularly -- understood the
prohibition against any "law respecting an establishment of Page 374 U. S. 235 religion" to reach devotional exercises in the public schools.
[ Footnote 3/3 ] It may be that
Jefferson and Madison would have held such exercises to be
permissible -- although, even in Jefferson's case, serious doubt is
suggested by his admonition against

															"putting the Bible and Testament into the hands of the children
at an age when their judgments are not sufficiently matured for
religious inquiries. . . . [ Footnote
3/4 ]"

															But Page 374 U. S. 236 I doubt that their view, even if perfectly clear one way or the
other, would supply a dispositive answer to the question presented
by these cases. A more fruitful inquiry, it seems to me, is whether
the practices here challenged threaten those consequences which the
Framers deeply feared; whether, in short, they tend to promote that
type of interdependence between religion and state which the First
Amendment was designed to prevent. [ Footnote 3/5 ] Our task is to translate

															"the majestic generalities of the Bill of Rights, conceived as
part of the pattern of liberal government in the eighteenth
century, into concrete restraints on officials Page 374 U. S. 237 dealing with the problems of the twentieth century. . . ." West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S.
639 .

															A too literal quest for the advice of the Founding Fathers upon
the issues of these cases seems to me futile and misdirected for
several reasons: first, on our precise problem, the historical
record is, at best, ambiguous, and statements can readily be found
to support either side of the proposition. The ambiguity of history
is understandable if we recall the nature of the problems uppermost
in the thinking of the statesmen who fashioned the religious
guarantees; they were concerned with far more flagrant intrusions
of government into the realm of religion than any that our century
has witnessed. [ Footnote 3/6 ] While
it is clear to me that the Framers meant the Establishment Clause
to prohibit more than the creation of an established federal church
such as existed in England, I have no doubt that, in their
preoccupation with the imminent question of established churches,
they gave no distinct Page 374 U. S. 238 consideration to the particular question whether the clause also
forbade devotional exercises in public institutions.

															Second, the structure of American education has greatly changed
since the First Amendment was adopted. In the context of our modern
emphasis upon public education available to all citizens, any views
of the eighteenth century as to whether the exercises at bar are an
"establishment" offer little aid to decision. Education, as the
Framers knew it, was in the main confined to private schools more
often than not under strictly sectarian supervision. Only gradually
did control of education pass largely to public officials.
[ Footnote 3/7 ] It would,
therefore, Page 374 U. S. 239 hardly be significant if the fact was that the nearly universal
devotional exercises in the schools of the young Republic did not
provoke criticism; even today, religious ceremonies in church
supported private schools are constitutionally unobjectionable. Page 374 U. S. 240 Third, our religious composition makes us a vastly more diverse
people than were our forefathers. They knew differences chiefly
among Protestant sects. Today, the Nation is far more heterogeneous
religiously, including as it does substantial minorities not only
of Catholics and Jews but as well of those who worship according to
no version of the Bible and those who worship no God at all.
[ Footnote 3/8 ] Page 374 U. S. 241 See Torcaso v. Watkins, 367 U.
S. 488 , 367 U. S. 495 .
In the face of such profound changes, practices which may have been
objectionable to no one in the time of Jefferson and Madison may
today be highly offensive to many persons, the deeply devout and
the nonbelievers alike.

															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.

															Fourth, the American experiment in free public education
available to all children has been guided in large measure by the
dramatic evolution of the religious diversity among the population
which our public schools serve. The interaction of these two
important forces in our national life has placed in bold relief
certain positive values in the consistent application to public
institutions generally, and public schools particularly, of the
constitutional decree against official involvements of religion
which might produce the evils the Framers meant the Establishment
Clause to forestall. The public schools are supported entirely, in
most communities, by public funds -- funds exacted not only from
parents, nor alone from those who hold particular religious views,
nor indeed from those who subscribe to any creed at all. It is
implicit in the history and character of American public education
that the public schools serve a uniquely Page 374 U. S. 242 public function: the training of American citizens in an
atmosphere free of parochial, divisive, or separatist influences of
any sort -- an atmosphere in which children may assimilate a
heritage common to all American groups and religions. See
Illinois ex rel. McCollum v. Board of Education, 333 U.
S. 203 . This is a heritage neither theistic nor
atheistic, but simply civic and patriotic. See Meyer v.
Nebraska, 262 U. S. 390 , 262 U. S.
400 -403.

															Attendance at the public schools has never been compulsory;
parents remain morally and constitutionally free to choose the
academic environment in which they wish their children to be
educated. The relationship of the Establishment Clause of the First
Amendment to the public school system is preeminently that of
reserving such a choice to the individual parent, rather than
vesting it in the majority of voters of each State or school
district. The choice which is thus preserved is between a public
secular education, with its uniquely democratic values, and some
form of private or sectarian education, which offers values of its
own. In my judgment, the First Amendment forbids the State to
inhibit that freedom of choice by diminishing the attractiveness of
either alternative -- either by restricting the liberty of the
private schools to inculcate whatever values they wish, or by
jeopardizing the freedom of the public schools from private or
sectarian pressures. The choice between these very different forms
of education is one very much like the choice of whether or not to
worship -- which our Constitution leaves to the individual parent.
It is no proper function of the state or local government to
influence or restrict that election. The lesson of history -- drawn
more from the experiences of other countries than from our own --
is that a system of free public education forfeits its unique
contribution to the growth of democratic citizenship when that
choice ceases to be freely available to each parent. Page 374 U. S. 243 II The exposition by this Court of the religious guarantees of the
First Amendment has consistently reflected and reaffirmed the
concerns which impelled the Framers to write those guarantees into
the Constitution. It would be neither possible nor appropriate to
review here the entire course of our decisions on religious
questions. There emerge from those decisions, however, three
principles of particular relevance to the issue presented by the
cases at bar, and some attention to those decisions is therefore
appropriate. First. One line of decisions derives from contests for
control of a church property or other internal ecclesiastical
disputes. This line has settled the proposition that, in order to
give effect to the First Amendment's purpose of requiring on the
part of all organs of government a strict neutrality toward
theological questions, courts should not undertake to decide such
questions. These principles were first expounded in the case of Watson v.
Jones , 13 Wall. 679, which declared that judicial
intervention in such a controversy would open up

															"the whole subject of the doctrinal theology, the usages and
customs, the written laws, and fundamental organization of every
religious denomination. . . ."

															13 Wall. at 80 U. S. 733 .
Courts above all must be neutral, for "[t]he law knows no heresy,
and is committed to the support of no dogma, the establishment of
no sect." [ Footnote 3/9 ] 13 Wall.
at 80 U. S. 728 .
This principle has recently Page 374 U. S. 244 been reaffirmed in Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 , and Kreshik v. St. Nicholas Cathedral, 363 U.
S. 190 .

															The mandate of judicial neutrality in theological controversies
met its severest test in United States v. Ballard, 322 U. S. 78 . That
decision put in sharp relief certain principles which bear directly
upon the questions presented in these cases. Ballard was indicted
for fraudulent use of the mails in the dissemination of religious
literature. He requested that the trial court submit to the jury
the question of the truthfulness of the religious views he
championed. The requested charge was refused, and we upheld that
refusal, reasoning that the First Amendment foreclosed any judicial
inquiry into the truth or falsity of the defendant's religious
beliefs. We said:

															"Man's relation to his God was made no concern of the state. He
was granted the right to worship as he pleased and to answer to no
man for the verity of his religious views."

															"Men may believe what they cannot Page 374 U. S. 245 prove. They may not be put to the proof of their religious
doctrines or beliefs. . . . Many take their gospel from the New
Testament. But it would hardly be supposed that they could be tried
before a jury charged with the duty of determining whether those
teachings contained false representations."

															322 U.S. at 322 U. S.
86 -87.

															The dilemma presented by the case was severe. While the alleged
truthfulness of nonreligious publications could ordinarily have
been submitted to the jury, Ballard was deprived of that defense
only because the First Amendment forbids governmental inquiry into
the verity of religious beliefs. In dissent, Mr. Justice
Jackson expressed the concern that, under this construction of the
First Amendment, "[p]rosecutions of this character easily could
degenerate into religious persecution." 322 U.S. at 322 U. S. 95 .
The case shows how elusive is the line which enforces the
Amendment's injunction of strict neutrality, while manifesting no
official hostility toward religion -- a line which must be
considered in the cases now before us. [ Footnote 3/10 ] Some might view the result of the Ballard case as a manifestation of hostility -- in that
the conviction stood because the defense could not be raised. To
others, it Page 374 U. S. 246 might represent merely strict adherence to the principle of
neutrality already expounded in the cases involving doctrinal
disputes. Inevitably, insistence upon neutrality, vital as it
surely is for untrammeled religious liberty, may appear to border
upon religious hostility. But, in the long view, the independence
of both church and state in their respective spheres will be better
served by close adherence to the neutrality principle. If the
choice is often difficult, the difficulty is endemic to issues
implicating the religious guarantees of the First Amendment.
Freedom of religion will be seriously jeopardized if we admit
exceptions for no better reason than the difficulty of delineating
hostility from neutrality in the closest cases. Second. It is only recently that our decisions have
dealt with the question whether issues arising under the
Establishment Clause may be isolated from problems implicating the
Free Exercise Clause. Everson v. Board of Education, 330 U. S. 1 , is, in
my view, the first of our decisions which treats a problem of
asserted unconstitutional involvement as raising questions purely
under the Establishment Clause. A scrutiny of several earlier
decisions said by some to have etched the contours of the clause
shows that such cases neither raised nor decided any constitutional
issues under the First Amendment. Bradfield v. Roberts, 175 U. S. 291 , for
example, involved challenges to a federal grant to a hospital
administered by a Roman Catholic order. The Court rejected the
claim for lack of evidence that any sectarian influence changed its
character as a secular institution chartered as such by the
Congress. [ Footnote 3/11 ] Quick Bear v. Leupp, 210 U. S. 50 , is
also illustrative. The immediate question there was one of
statutory construction, although the issue had originally involved
the Page 374 U. S. 247 constitutionality of the use of federal funds to support
sectarian education on Indian reservations. Congress had already
prohibited federal grants for that purpose, thereby removing the
broader issue, leaving only the question whether the statute
authorized the appropriation for religious teaching of Treaty funds
held by the Government in trust for the Indians. Since these were
the Indians' own funds, the Court held only that the Indians might
direct their use for such educational purposes as they chose, and
that the administration by the Treasury of the disbursement of the
funds did not inject into the case any issue of the propriety of
the use of federal moneys. [ Footnote
3/12 ] Indeed, the Court expressly approved the reasoning of the
Court of Appeals that to deny the Indians the right to spend their
own moneys for religious purposes of their choice might well
infringe the free exercise of their religion:

															"it seems inconceivable that Congress should have intended to
prohibit them from receiving religious education at their own cost
if they so desired it. . . ."

															210 U.S. at 210 U. S. 82 . This
case forecast, however, an increasingly troublesome First Amendment
paradox: that the logical interrelationship between the
Establishment and Free Exercise Clauses may produce situations
where an injunction against an apparent establishment must be
withheld in order to avoid infringement of rights of free exercise.
That paradox was not squarely presented in Quick Bear, but
the care taken by the Court Page 374 U. S. 248 to avoid a constitutional confrontation discloses an awareness
of possible conflicts between the two clauses. I shall come back to
this problem later, infra, pp. 374 U. S.
296 -299.

															A third case in this group is Cochran v. Louisiana State
Board, 281 U. S. 370 ,
which involved a challenge to a state statute providing public
funds to support a loan of free textbooks to pupils of both public
and private schools. The constitutional issues in this Court
extended no further than the claim that this program amounted to a
taking of private property for nonpublic use. The Court rejected
the claim on the ground that no private use of property was
involved; ". . . we cannot doubt that the taxing power of the State
is exerted for a public purpose." 281 U.S. at 281 U. S. 375 .
The case therefore raised no issue under the First Amendment.
[ Footnote 3/13 ]

															In Pierce v. Society of Sisters, 268 U.
S. 510 , a Catholic parochial school and a private but
nonsectarian military academy challenged a state law requiring all
children between certain ages to attend the public schools. This
Court held the law invalid as an arbitrary and unreasonable
interference both with the rights of the schools and with the
liberty of the parents of the children who attended them. The due
process guarantee of the Fourteenth Amendment "excludes any general
power of the State to standardize its children by forcing them to
accept instruction from public teachers only." 268 U.S. at 268 U. S. 535 .
While one of the plaintiffs was indeed a parochial school, the case
obviously decided no First Amendment question, but recognized only
the constitutional right to establish and patronize private schools
-- including parochial schools -- which meet the state's reasonable
minimum curricular requirements. Page 374 U. S. 249 Third. It is true, as the Court says, that the "two
clauses [Establishment and Free Exercise] may overlap." Because of
the overlap, however, our decisions under the Free Exercise Clause
bear considerable relevance to the problem now before us, and
should be briefly reviewed. The early free exercise cases generally
involved the objections of religious minorities to the application
to them of general nonreligious legislation governing conduct. Reynolds v. United States, 98 U. S.
145 , involved the claim that a belief in the sanctity of
plural marriage precluded the conviction of members of a particular
sect under nondiscriminatory legislation against such marriage. The
Court rejected the claim, saying:

															"Laws are made for the government of actions, and while they
cannot interfere with mere religious beliefs and opinions, they may
with practices. . . . Can a man excuse his practices to the
contrary because of his religious belief? To permit this would be
to make the professed doctrines of religious belief superior to the
law of the land, and in effect to permit every citizen to become a
law unto himself. Government could exist only in name under such
circumstances. [ Footnote
3/14 ]"

															98 U.S. at 98 U. S.
166 -167. Page 374 U. S. 250 Davis v. Beason, 133 U. S. 333 ,
similarly involved the claim that the First Amendment insulated
from civil punishment certain practices inspired or motivated by
religious beliefs. The claim was easily rejected:

															"It was never intended or supposed that the amendment could be
invoked as a protection against legislation for the punishment of
acts inimical to the peace, good order and morals of society."

															133 U.S. at 133 U. S. 342 . See also Mormon Church v. United States, 136 U. S.
1 ; Jacobson v. Massachusetts, 197 U. S.
11 ; Prince v. Massachusetts, 321 U.
S. 158 ; Cleveland v. United States, 329 U. S. 14 .

															But we must not confuse the issue of governmental power to
regulate or prohibit conduct motivated by religious
beliefs with the quite different problem of governmental
authority to compel behavior offensive to religious
principles. In Hamilton v. Regents of the University of
California, 293 U. S. 245 , the
question was that of the power of a State to compel students at the
State University to participate in military training instruction
against their religious convictions. The validity of the statute
was sustained against claims based upon the First Amendment. But
the decision rested on a very narrow principle: since there was
neither a constitutional right nor a legal obligation to attend the
State University, the obligation to participate in military
training courses, Page 374 U. S. 251 reflecting a legitimate state interest, might properly be
imposed upon those who chose to attend. Although the rights
protected by the First and Fourteenth Amendments were presumed to
include

															"the right to entertain the beliefs, to adhere to the principles
and to teach the doctrines on which these students base their
objections to the order prescribing military training,"

															those Amendments were construed not to free such students from
the military training obligations if they chose to attend the
University. Justices Brandeis, Cardozo and Stone, concurring
separately, agreed that the requirement infringed no
constitutionally protected liberties. They added, however, that the
case presented no question under the Establishment Clause. The
military instruction program was not an establishment, since it in
no way involved "instruction in the practice or tenets of a
religion." 293 U.S. at 293 U. S. 266 .
Since the only question was one of free exercise, they concluded,
like the majority, that the strong state interest in training a
citizen militia justified the restraints imposed, at least so long
as attendance at the University was voluntary. [ Footnote 3/15 ] Hamilton has not been overruled, although United
States v. Schwimmer, 279 U. S. 644 , and United States v. Macintosh, 283 U.
S. 605 , upon which the Court in Hamilton relied, have since been overruled by Girouard v. United
States, 328 U. S. 61 . But
if Hamilton retains any vitality with respect to higher
education, we recognized its inapplicability to cognate questions
in the public primary and secondary schools when we held, in West Virginia Board of Education v. Barnette, supra, that
a State had no power to expel from public schools students who
refused on religious grounds to comply with a daily flag Page 374 U. S. 252 salute requirement. Of course, such a requirement was no more a
law "respecting an establishment of religion" than the California
law compelling the college students to take military training. The Barnette plaintiffs, moreover, did not ask that the whole
exercise be enjoined, but only that an excuse or exemption be
provided for those students whose religious beliefs forbade them to
participate in the ceremony. The key to the holding that such a
requirement abridged rights of free exercise lay in the fact that
attendance at school was not voluntary but compulsory. The Court
said:

															"This issue is not prejudiced by the Court's previous holding
that, where a State, without compelling attendance, extends college
facilities to pupils who voluntarily enroll, it may prescribe
military training as part of the course without offense to the
Constitution. . . . Hamilton v. Regents, 293 U. S.
245 . In the present case, attendance is not
optional."

															319 U.S. at 319 U. S.
631 -632. The Barnette decision made another
significant point. The Court held that the State must make
participation in the exercise voluntary for all students, and not
alone for those who found participation obnoxious on religious
grounds. In short, there was simply no need to "inquire whether
nonconformist beliefs will exempt from the duty to salute," because
the Court found no state "power to make the salute a legal duty."
319 U.S. at 319 U. S.
635 .

															The distinctions between Hamilton and Barnette are, I think, crucial to the resolution of the cases before us. The
different results of those cases are attributable only in part to a
difference in the strength of the particular state interests which
the respective statutes were designed to serve. Far more
significant is the fact that Hamilton dealt with the
voluntary attendance at college of young adults, while Barnette involved the compelled attendance Page 374 U. S. 253 of young children at elementary and secondary schools. [ Footnote 3/16 ] This distinction warrants
a difference in constitutional results. And it is with the
involuntary attendance of young school children that we are
exclusively concerned in the cases now before the Court. III No one questions that the Framers of the First Amendment
intended to restrict exclusively the powers of the Federal
Government. [ Footnote 3/17 ]
Whatever limitations that Amendment now imposes upon the States
derive from the Fourteenth Amendment. The process of absorption of
the religious guarantees of the First Amendment as protections
against the States under the Fourteenth Amendment began with the
Free Exercise Clause. In 1923 the Court held that the protections
of the Fourteenth included at least a person's freedom "to worship
God according to the dictates of his own conscience. . . ."
[ Footnote 3/18 ] Meyer v.
Nebraska, 262 U. S. 390 , 262 U. S. 399 . See also Hamilton v. Regents, supra, at 293 U. S. 262 . Cantwell v. Connecticut, 310 U. S. 296 ,
completed in 1940 the process of absorption Page 374 U. S. 254 of the Free Exercise Clause and recognized its dual aspect: the
Court affirmed freedom of belief as an absolute liberty, but
recognized that conduct, while it may also be comprehended by the
Free Exercise Clause, "remains subject to regulation for the
protection of society." 310 U.S. at 310 U. S.
303 -304. This was a distinction already drawn by Reynolds v. United States, supra. From the beginning, this
Court has recognized that, while government may regulate the
behavioral manifestations of religious beliefs, it may not
interfere at all with the beliefs themselves.

															The absorption of the Establishment Clause has, however, come
later, and by a route less easily charted. It has been suggested,
with some support in history, that absorption of the First
Amendment's ban against congressional legislation "respecting an
establishment of religion" is conceptually impossible, because the
Framers meant the Establishment Clause also to foreclose any
attempt by Congress to disestablish the existing official state
churches. [ Footnote 3/19 ] Whether
or not such was the understanding of the Framers, and whether such
a purpose would have inhibited the absorption of the Establishment
Clause at the threshold of the Nineteenth Century, are questions
not dispositive of our present inquiry. For it is Page 374 U. S. 255 clear on the record of history that the last of the formal state
establishments was dissolved more than three decades before the
Fourteenth Amendment was ratified, and thus the problem of
protecting official state churches from federal encroachments could
hardly have been any concern of those who framed the post-Civil War
Amendments. [ Footnote 3/20 ] Any
such objective of the First Amendment, having become historical
anachronism by 1868, cannot be thought to have deterred the
absorption of the Establishment Clause to any greater degree than
it would, for example, have deterred the absorption of the Free
Exercise Clause. That no organ of the Federal Government possessed
in 1791 any power to restrain the interference of the States in
religious matters is indisputable. See Permoli v. New
Orleans , 3 How. 589. It is equally plain, on the
other hand, that the Fourteenth Amendment created a panoply of new
federal rights for the protection of citizens of the various
States. And among those rights was freedom from such state
governmental involvement in the affairs of religion as the
Establishment Clause had originally foreclosed on the part of
Congress. Page 374 U. S. 256 It has also been suggested that the "liberty" guaranteed by the
Fourteenth Amendment logically cannot absorb the Establishment
Clause because that Clause is not one of the provisions of the Bill
of Rights which in terms protects a "freedom" of the individual. See Corwin, A Constitution of Powers in a Secular State
(1951), 113-116. The fallacy in this contention, I think, is that
it underestimates the role of the Establishment Clause as a
co-guarantor, with the Free Exercise Clause, of religious liberty.
The Framers did not entrust the liberty of religious beliefs to
either clause alone. The Free Exercise Clause "was not to be the
full extent of the Amendment's guarantee of freedom from
governmental intrusion in matters of faith." McGowan v.
Maryland, supra, at 366 U. S. 464 (opinion of Fankfurter, J.).

															Finally, it has been contended that absorption of the
Establishment Clause is precluded by the absence of any intention
on the part of the Framers of the Fourteenth Amendment to
circumscribe the residual powers of the States to aid religious
activities and institutions in ways which fell short of formal
establishments. [ Footnote 3/21 ]
That argument relies in part upon the express terms of the Page 374 U. S. 257 abortive Blaine Amendment -- proposed several years after the
adoption of the Fourteenth Amendment -- which would have added to
the First Amendment a provision that "[n]o State shall make any law
respecting an establishment of religion. . . ." Such a restriction
would have been superfluous, it is said, if the Fourteenth
Amendment had already made the Establishment Clause binding upon
the States.

															The argument proves too much, for the Fourteenth Amendment's
protection of the free exercise of religion can hardly be
questioned; yet the Blaine Amendment would also have added an
explicit protection against state laws abridging that liberty.
[ Footnote 3/22 ] Even if we assume
that the draftsmen of the Fourteenth Amendment saw no immediate
connection between its protections against state action infringing
personal liberty and the guarantees of the First Amendment, it is
certainly too late in the day to suggest that their assumed
inattention to the question dilutes the force of these
constitutional guarantees in their application to the States.
[ Footnote 3/23 ] It is enough to
conclude Page 374 U. S. 258 that the religious liberty embodied in the Fourteenth Amendment
would not be viable if the Constitution were interpreted to forbid
only establishments ordained by Congress. [ Footnote 3/24 ] Page 374 U. S. 259 The issue of what particular activities the Establishment Clause
forbids the States to undertake is our more immediate concern. In Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 15 -16,
a careful study of the relevant history led the Court to the view,
consistently recognized in decisions since Everson, that
the Establishment Clause embodied the Framers' conclusion that
government and religion have discrete interests which are mutually
best served when each avoids too close a proximity to the other. It
is not only the nonbeliever who fears the injection of sectarian
doctrines and controversies into the civil polity, but in as high
degree it is the devout believer who fears the secularization of a
creed which becomes too deeply involved with and dependent upon the
government. [ Footnote 3/25 ]
It Page 374 U. S. 260 has rightly been said of the history of the Establishment Clause
that

															"our tradition of civil liberty rests not only on the secularism
of a Thomas Jefferson, but also on the fervent sectarianism . . .
of a Roger Williams."

															Freund, The Supreme Court of the United States (1961), 84.

															Our decisions on questions of religious education or exercises
in the public schools have consistently reflected this dual aspect
of the Establishment Clause. Engel v. Vitale unmistakably
has its roots in three earlier cases which, on cognate issues,
shaped the contours of the Establishment Clause. First, in Everson, the Court held that reimbursement by the town of
parents for the cost of transporting their children by public
carrier to parochial (as well as public and private nonsectarian)
schools did not offend the Establishment Clause. Such
reimbursement, by easing the financial burden upon Catholic
parents, may indirectly have fostered the operation of the Catholic
schools, and may thereby indirectly have facilitated the teaching
of Catholic principles, thus serving ultimately a religious goal.
But this form of governmental assistance was difficult to
distinguish from myriad other incidental, if not insignificant,
government benefits enjoyed by religious institutions -- fire and
police protection, tax exemptions, and the pavement of streets and
sidewalks, for example.

															"The State contributes no money to the schools. It does not
support them. Its legislation, as applied, does no more than
provide a general program to help parents get their children,
regardless of their religion, safely and expeditiously to and
from Page 374 U. S. 261 accredited schools."

															330 U.S. at 330 U. S. 18 . Yet
even this form of assistance was thought by four Justices of the Everson Court to be barred by the Establishment Clause
because too perilously close to that public support of religion
forbidden by the First Amendment.

															The other two cases, Illinois ex rel. McCollum v. Board of
Education, 333 U. S. 203 , and Zorach v. Clauson, 343 U. S. 306 , can
best be considered together. Both involved programs of released
time for religious instruction of public school students. I reject
the suggestion that Zorach overruled McCollum in
silence. [ Footnote 3/26 ] The
distinction which the Court drew in Zorach between the two
cases is, in my view, faithful to the function of the Establishment
Clause.

															I should first note, however, that McCollum and Zorach do not seem to me distinguishable in terms of the
free exercise claims advanced in both cases. [ Footnote 3/27 ] The nonparticipant in the McCollum program was given secular instruction in a
separate room during the times his classmates had religious
lessons; the nonparticipant in any Zorach program also
received secular instruction, while his classmates repaired to a
place outside the school for religious instruction.

															The crucial difference, I think, was that the McCollum program offended the Establishment Clause, while the Zorach program did not. This was not, in my view, because
of the difference in public expenditures involved. True, the McCollum program involved the regular use of school
facilities, classrooms, heat and light and time from the regular
school day -- even though the actual Page 374 U. S. 262 incremental cost may have been negligible. All religious
instruction under the Zorach program, by contrast, was
carried on entirely off the school premises, and the teacher's part
was simply to facilitate the children's release to the churches.
The deeper difference was that the McCollum program placed
the religious instructor in the public school classroom in
precisely the position of authority held by the regular teachers of
secular subjects, while the Zorach program did not.
[ Footnote 3/28 ] The McCollum program, Page 374 U. S. 263 in lending to the support of sectarian instruction all the
authority of the governmentally operated public school system,
brought government and religion into that proximity which the
Establishment Clause forbids. To be sure, a religious teacher
presumably commands substantial respect and merits attention in his
own right. But the Constitution does not permit that prestige and
capacity for influence to be augmented by investiture of all the
symbols of authority at the command of the lay teacher for the
enhancement of secular instruction.

															More recent decisions have further etched the contours of
Establishment. In the Sunday Law Cases, we found in state
laws compelling a uniform day of rest from worldly labor no
violation of the Establishment Clause ( McGowan v.
Maryland, 366 U. S. 420 ).
The basic Page 374 U. S. 264 ground of our decision was that, granted the Sunday Laws were
first enacted for religious ends, they were continued in force for
reasons wholly secular, namely, to provide a universal day of rest
and ensure the health and tranquillity of the community. In other
words, government may originally have decreed a Sunday day of rest
for the impermissible purpose of supporting religion, but abandoned
that purpose and retained the laws for the permissible purpose of
furthering overwhelmingly secular ends.

															Such was the evolution of the contours of the Establishment
Clause before Engel v. Vitale. There, a year ago, we held
that the daily recital of the state-composed Regents' Prayer
constituted an establishment of religion because, although the
prayer itself revealed no sectarian content or purpose, its nature
and meaning were quite clearly religious. New York, in authorizing
its recitation, had not maintained that distance between the public
and the religious sectors commanded by the Establishment Clause
when it placed the "power, prestige and financial support of
government" behind the prayer. In Engel, as in McCollum, it did not matter that the amount of time and
expense allocated to the daily recitation was small, so long as the
exercise itself was manifestly religious. Nor did it matter that
few children had complained of the practice, for the measure of the
seriousness of a breach of the Establishment Clause has never been
thought to be the number of people who complain of it.

															We also held two Terms ago, in Torcaso v. Watkins,
supra, that a State may not constitutionally require an
applicant for the office of Notary Public to swear or affirm that
he believes in God. The problem of that case was strikingly similar
to the issue presented 18 years before in the flag salute case, West Virginia Board of Education v. Barnette, supra. In
neither case was there any claim of establishment of religion, but
only of infringement of Page 374 U. S. 265 the individual's religious liberty -- in the one case, that of
the nonbeliever who could not attest to a belief in God; in the
other, that of the child whose creed forbade in to salute the flag.
But Torcaso added a new element not present in Barnette. The Maryland test oath involved an attempt to
employ essentially religious (albeit nonsectarian) means to achieve
a secular goal to which the means bore no reasonable relationship.
No one doubted the State's interest in the integrity of its
Notaries Public, but that interest did not warrant the screening of
applicants by means of a religious test. The Sunday Law
Cases were different in that respect. Even if Sunday Laws
retain certain religious vestiges, they are enforced today for
essentially secular objectives which cannot be effectively achieved
in modern society except by designating Sunday as the universal day
of rest. The Court's opinions cited very substantial problems in
selecting or enforcing an alternative day of rest. But the teaching
of both Torcaso and the Sunday Law Cases is that
government may not employ religious means to serve secular
interests, however legitimate they may be, at least without the
clearest demonstration that nonreligious means will not suffice.
[ Footnote 3/29 ] Page 374 U. S. 266 IV I turn now to the cases before us. [ Footnote 3/30 ] The religious nature of the exercises
here challenged seems plain. Unless Engel v. Vitale is to
be overruled or we are to engage in wholly disingenuous
distinction, we cannot sustain Page 374 U. S. 267 these practices. Daily recital of the Lord's Prayer and the
reading of passages of Scripture are quite as clearly breaches of
the command of the Establishment Clause as was the daily use of the
rather bland Regents' Prayer in the New York public schools.
Indeed, I would suppose that, if anything, the Lord's Prayer and
the Holy Bible are more clearly sectarian, and the present
violations of the First Amendment consequently more serious. But
the religious exercises challenged in these cases have a long
history. And, almost from the beginning, Bible reading and daily
prayer in the schools have been the subject of debate, criticism by
educators and other public officials, and proscription by courts
and legislative councils. At the outset, then, we must carefully
canvass both aspects of this history.

															The use of prayers and Bible readings at the opening of the
school day long antedates the founding of our Republic. The Rules
of the New Haven Hopkins Grammar School required in 1684

															"[t]hat, the Scholars being Page 374 U. S. 268 called together, the Mr. shall every morning begin his work with
a short prayer for a blessing on his Laboures and their learning. .
. . [ Footnote 3/31 ]"

															More rigorous was the provision in a 1682 contract with a Dutch
schoolmaster in Flatbush, New York:

															"When the school begins, one of the children shall read the
morning prayer, as it stands in the catechism, and close with the
prayer before dinner; in the afternoon, it shall begin with the
prayer after dinner, and end with the evening prayer. The evening
school shall begin with the Lord's prayer, and close by singing a
psalm. [ Footnote 3/32 ]"

															After the Revolution, the new States uniformly continued these
long-established practices in the private and the few public
grammar schools. The school committee of Boston in 1789, for
example, required the city's several schoolmasters "daily to
commence the duties of their office by prayer and reading a portion
of the Sacred Scriptures. . . ." [ Footnote 3/33 ] That requirement was mirrored throughout
the original States, and exemplified the universal practice well
into the nineteenth century. As the free public schools gradually
supplanted the private academies and sectarian schools between 1800
and 1850, morning devotional exercises were retained with few
alterations. Indeed, public pressures upon school administrators in
many parts of the country would hardly have condoned abandonment of
practices to which a century or more of private religious education
had accustomed the American people. [ Footnote 3/34 ] The controversy centered, in Page 374 U. S. 269 fact, principally about the elimination of plainly sectarian
practices and textbooks, and led to the eventual substitution of
nonsectarian, though still religious, exercises and materials.
[ Footnote 3/35 ]

															Statutory provision for daily religious exercises is, however,
of quite recent origin. At the turn of this century, there was but
one State -- Massachusetts -- which had a law making morning prayer
or Bible reading obligatory. Statutes elsewhere either permitted
such practices or simply left the question to local option. It was
not until after 1910 that 11 more States, within a few years,
joined Massachusetts in making one or both exercises compulsory.
[ Footnote 3/36 ] The Pennsylvania
law with which we are Page 374 U. S. 270 concerned in the Schempp case, for example, took effect
in 1913, and even the Rule of the Baltimore School Board involved
in the Murray case dates only from 1905. In no State has
there ever been a constitutional or statutory prohibition against
the recital of prayers or the reading of Scripture, although a
number of States have outlawed these practices by judicial decision
or administrative order. What is noteworthy about the panoply of
state and local regulations from which these cases emerge is the
relative recency of the statutory codification of practices which
have ancient roots, and the rather small number of States which
have ever prescribed compulsory religious exercises in the public
schools.

															The purposes underlying the adoption and perpetuation of these
practices are somewhat complex. It is beyond question that the
religious benefits and values realized from daily prayer and Bible
reading have usually been considered paramount, and sufficient to
justify the continuation of such practices. To Horace Mann,
embroiled in an intense controversy over the role of sectarian
instruction and textbooks in the Boston public schools, there was
little question that the regular use of the Bible -- which he
thought essentially nonsectarian -- would bear fruit in the
spiritual enlightenment of his pupils. [ Footnote 3/37 ] A contemporary of Mann's, the
Commissioner of Education of a neighboring State, expressed a view
which many enlightened educators of that day shared:

															"As a textbook of morals, the Bible is preeminent, and should
have a prominent place in our schools, Page 374 U. S. 271 either as a reading book or as a source of appeal and
instruction. Sectarianism, indeed, should not be countenanced in
the schools; but the Bible is not sectarian. . . . The Scriptures
should at least be read at the opening of the school, if no more.
Prayer may also be offered with the happiest effects. [ Footnote 3/38 ]"

															Wisconsin's Superintendent of Public Instruction, writing a few
years later in 1858, reflected the attitude of his eastern
colleagues, in that he regarded

															"with special favor the use of the Bible in public schools, as
preeminently first in importance among textbooks for teaching the
noblest principles of virtue, morality, patriotism, and good order
-- love and reverence for God -- charity and good will to man.
[ Footnote 3/39 ]"

															Such statements reveal the understanding of educators that the
daily religious exercises in the schools served broader goals than
compelling formal worship of God or fostering church attendance.
The religious aims of the educators who adopted and retained such
exercises were comprehensive, and in many cases quite devoid of
sectarian bias -- but the crucial fact is that they were
nonetheless religious. While it has been suggested, see pp. 374 U. S.
278 -281, infra that daily prayer and reading of
Scripture now serve secular goals as well, there can be no doubt
that the origins of these practices were unambiguously religious,
even where the educator's aim was not to win adherents to a
particular creed or faith.

															Almost from the beginning, religious exercises in the public
schools have been the subject of intense criticism, vigorous
debate, and judicial or administrative prohibition. Significantly,
educators and school boards Page 374 U. S. 272 early entertained doubts about both the legality and the
soundness of opening the school day with compulsory prayer or Bible
reading. Particularly in the large Eastern cities, where
immigration had exposed the public schools to religious diversities
and conflicts unknown to the homogeneous academies of the
eighteenth century, local authorities found it necessary even
before the Civil War to seek an accommodation. In 1843, the
Philadelphia School Board adopted the following resolutions:

															"RESOLVED, that no children be required to attend or unite in
the reading of the Bible in the Public Schools, whose parents are
conscientiously opposed thereto: "

															"RESOLVED, that those children whose parents conscientiously
prefer and desire any particular version of the Bible, without note
or comment, be furnished with same. [ Footnote 3/40 ]"

															A decade later, the Superintendent of Schools of New York State
issued an even bolder decree that prayers could no longer be
required as part of public school activities, and that, where the
King James Bible was read, Catholic students could not be compelled
to attend. [ Footnote 3/41 ] This
type of accommodation was not restricted to the East Coast; the
Cincinnati Board of Education resolved in 1869 that

															"religious instruction and the reading of religious books,
including the Holy Bible, are prohibited in the common schools of
Cincinnati, it being the true object and intent of this rule to
allow the children of the parents of all sects and opinions, in
matters of faith and worship, Page 374 U. S. 273 to enjoy alike the benefit of the common school fund. [ Footnote 3/42 ]"

															The Board repealed at the same time an earlier regulation which
had required the singing of hymns and psalms to accompany the Bible
reading at the start of the school day. And, in 1889, one
commentator ventured the view that "[t]here is not enough to be
gained from Bible reading to justify the quarrel that has been
raised over it." [ Footnote
3/43 ]

															Thus, a great deal of controversy over religion in the public
schools had preceded the debate over the Blaine Amendment,
precipitated by President Grant's insistence that matters of
religion should be left "to the family altar, the church, and the
private school, supported entirely by private contributions."
[ Footnote 3/44 ] There was ample
precedent, too, for Theodore Roosevelt's declaration that, in the
interest of "absolutely nonsectarian public schools," it was "not
our business to have the Protestant Bible or the Catholic Vulgate
or the Talmud read in those schools." [ Footnote 3/45 ] The same principle appeared in the
message of an Ohio Governor who vetoed a compulsory Bible reading
bill in 1925:

															"It is my belief that religious teaching in our homes, Sunday
schools, churches, by the good Page 374 U. S. 274 mothers, fathers, and ministers of Ohio is far preferable to
compulsory teaching of religion by the state. The spirit of our
federal and state constitutions from the beginning. . . [has] been
to leave religious instruction to the discretion of parents.
[ Footnote 3/46 ]"

															The same theme has recurred in the opinions of the Attorneys
General of several States holding religious exercises or
instruction to be in violation of the state or federal
constitutional command of separation of church and state. [ Footnote 3/47 ] Thus, the basic principle
upon which our decision last year in Engel v. Vitale necessarily rested, and which we reaffirm today, can hardly be
thought to be radical or novel.

															Particularly relevant for our purposes are the decisions of the
state courts on questions of religion in the public schools. Those
decisions, while not, of course, authoritative in this Court, serve
nevertheless to define the problem before us and to guide our
inquiry. With the growth of religious diversity and the rise of
vigorous dissent it was inevitable that the courts would be called
upon to enjoin religious practices in the public schools which
offended certain sects and groups. The earliest of such decisions
declined to review the propriety of actions taken by school
authorities, so long as those actions were within Page 374 U. S. 275 the purview of the administrators' powers. [ Footnote 3/48 ] Thus, where the local school board
required religious exercises, the courts would not enjoin them,
[ Footnote 3/49 ] and where, as in
at least one case, the school officials forbade devotional
practices, the court refused on similar grounds to overrule that
decision. [ Footnote 3/50 ] Thus,
whichever way the early cases came up, the governing principle of
nearly complete deference to administrative discretion effectively
foreclosed any consideration of constitutional questions.

															The last quarter of the nineteenth century found the courts
beginning to question the constitutionality of public school
religious exercises. The legal context was still, of course, that
of the state constitutions, since the First Amendment had not yet
been held applicable to state action. And the state constitutional
prohibitions against church-state cooperation or governmental aid
to religion were generally less rigorous than the Establishment
Clause of the First Amendment. It is therefore remarkable that the
courts of a half dozen States found compulsory religious exercises
in the public schools in violation of their respective state
constitutions. [ Footnote 3/51 ]
These Page 374 U. S. 276 courts attributed much significance to the clearly religious
origins and content of the challenged practices, and to the
impossibility of avoiding sectarian controversy in their conduct.
The Illinois Supreme Court expressed in 1910 the principles which
characterized these decisions:

															"The public school is supported by the taxes which each citizen,
regardless of his religion or his lack of it, is compelled to pay.
The school, like the government, is simply a civil institution. It
is secular, and not religious, in its purposes. The truths of the
Bible are the truths of religion, which do not come within the
province of the public school. . . . No one denies that they should
be taught to the youth of the State. The constitution and the law
do not interfere with such teaching, but they do banish theological
polemics from the schools and the school districts. This is done
not from any hostility to religion, but because it is no part of
the duty of the State to teach religion -- to take the money of all
and apply it to teaching the children of all the religion of a part
only. Instruction in religion must be voluntary." People ex rel. Ring v. Board of Education, 245 Ill.
334, 349, 92 N.E. 251, 256 (1910). The Supreme Court of South
Dakota, in banning devotional exercises from the public schools of
that State, also cautioned that

															"[t]he state as an educator must keep out of this field, and
especially is this true in the common schools, where the child is
immature, without fixed religious convictions. . . ." State ex rel. Finger v. Weedman, 55 S.D. 343, 357, 226
N.W. 348, 354 (1929). Page 374 U. S. 277 Even those state courts which have sustained devotional
exercises under state law [ Footnote
3/52 ] have usually recognized the primarily religious character
of prayers and Bible readings. If such practices were not for that
reason unconstitutional, it was necessarily because the state
constitution forbade only public expenditures for sectarian
instruction, or for activities which made the schoolhouse a "place
of worship," but said nothing about the subtler question of laws
"respecting an establishment of religion." [ Footnote 3/53 ] Thus, the panorama of history permits
no Page 374 U. S. 278 other conclusion than that daily prayers and Bible readings in
the public schools have always been designed to be, and have been
regarded as, essentially religious exercises. Unlike the Sunday
closing laws, these exercises appear neither to have been divorced
from their religious origins nor deprived of their centrally
religious character by the passage of time, [ Footnote 3/54 ] cf. McGowan v. Maryland, supra, at 366 U. S.
442 -445. On this distinction alone we might well rest a
constitutional decision. But three further contentions have been
pressed in the argument of these cases. These contentions deserve
careful consideration, for if the position of the school
authorities were correct in respect to any of them, we would be
misapplying the principles of Engel v. Vitale. A First, it is argued that, however clearly religious may have
been the origins and early nature of daily prayer and Bible
reading, these practices today serve so clearly secular educational
purposes that their religious attributes may be overlooked. I do
not doubt, for example, that morning devotional exercises may
foster better discipline in the classroom, and elevate the
spiritual level on which the school day opens. The Pennsylvania
Superintendent of Public Instruction, testifying by deposition in
the Schempp case, offered his view that daily Bible
reading

															"places upon the children or those hearing the reading of this,
and the atmosphere which goes on in the reading . . . one of the
last vestiges of moral value Page 374 U. S. 279 that we have left in our school system."

															The exercise thus affords, the Superintendent concluded, "a
strong contradiction to the materialistic trends of our time."
Baltimore's Superintendent of Schools expressed a similar view of
the practices challenged in the Murray case, to the effect
that

															"[t]he acknowledgement of the existence of God as symbolized in
the opening exercises establishes a discipline tone which tends to
cause each individual pupil to constrain his overt acts and to
consequently conform to accepted standards of behavior during his
attendance at school."

															These views are by no means novel, see, e.g., Billard v.
Board of Education, 69 Kan. 53, 57-58, 76 P. 422, 423 (1904).
[ Footnote 3/55 ]

															It is not the business of this Court to gainsay the judgments of
experts on matters of pedagogy. Such decisions must be left to the
discretion of those administrators charged with the supervision of
the Nation's public schools. The limited province of the courts is
to determine whether the means which the educators have chosen to
achieve legitimate pedagogical ends infringe the constitutional
freedoms of the First Amendment. The secular purposes which
devotional exercises are said to serve fall into two categories --
those which depend upon an immediately religious experience shared
by the participating children and those which appear sufficiently
divorced from the religious content of the devotional material that
they can be served equally by nonreligious Page 374 U. S. 280 materials. With respect to the first objective, much has been
written about the moral and spiritual values of infusing some
religious influence or instruction into the public school
classroom. [ Footnote 3/56 ] To the
extent that only religious materials will serve this purpose, it
seems to me that the purpose, as well as the means, is so plainly
religious that the exercise is necessarily forbidden by the
Establishment Clause. The fact that purely secular benefits may
eventually result does not seem to me to justify the exercises, for
similar indirect nonreligious benefits could no doubt have been
claimed for the released time program invalidated in McCollum. The second justification assumes that religious exercises at the
start of the school day may directly serve solely secular ends --
for example, by fostering harmony and tolerance among the pupils,
enhancing the authority of the teacher, and inspiring better
discipline. To the extent that such benefits result not from the
content of the readings and recitation, but simply from the holding
of such a solemn exercise at the opening assembly or the first
class of the day, it would seem that less sensitive materials might
equally well serve the same purpose. I have previously suggested
that Torcaso and the Sunday Law Cases forbid the
use of religious means to achieve secular Page 374 U. S. 281 ends where nonreligious means will suffice. That principle is
readily applied to these cases. It has not been shown that readings
from the speeches and messages of great Americans, for example, or
from the documents of our heritage of liberty, daily recitation of
the Pledge of Allegiance, or even the observance of a moment of
reverent silence at the opening of class, may not adequately serve
the solely secular purposes of the devotional activities without
jeopardizing either the religious liberties of any members of the
community or the proper degree of separation between the spheres of
religion and government. [ Footnote
3/57 ] Such substitutes would, I think, be unsatisfactory or
inadequate only to the extent that the present activities do, in
fact, serve religious goals. While I do not question the judgment
of experienced educators that the challenged practices may well
achieve valuable secular ends, it seems to me that the State acts
unconstitutionally if it either sets about to attain even
indirectly religious ends by religious means, or if it uses
religious means to serve secular ends where secular means would
suffice. B Second, it is argued that the particular practices involved in
the two cases before us are unobjectionable Page 374 U. S. 282 because the prefer no particular sect or sects at the expense of
others. Both the Baltimore and Abington procedures permit, for
example, the reading of any of several versions of the Bible, and
this flexibility is said to ensure neutrality sufficiently to avoid
the constitutional prohibition. One answer, which might be
dispositive, is that any version of the Bible is inherently
sectarian, else there would be no need to offer a system of
rotation or alternation of versions in the first place, that is, to
allow different sectarian versions to be used on different days.
The sectarian character of the Holy Bible has been at the core of
the whole controversy over religious practices in the public
schools throughout its long and often bitter history. [ Footnote 3/58 ] To Page 374 U. S. 283 vary the version as the Abington and Baltimore schools have done
may well be less offensive than to read from the King James version
every day, as once was the practice. But the result even of this
relatively benign procedure is that majority sects are preferred in
approximate proportion to their representation in the community and
in the student body, while the smaller sects suffer commensurate
discrimination. So long as the subject matter of the exercise is
sectarian in character, these consequences cannot be avoided.

															The argument contains, however, a more basic flaw. There are
persons in every community -- often deeply devout -- to whom any
version of the Judaeo-Christian Bible is offensive. [ Footnote 3/59 ] There are others whose
reverence for the Holy Scriptures demands private study or
reflection, and to whom public reading or recitation is
sacrilegious, as one of the expert witnesses at the trial of the Schempp case explained. To such persons, it is not the
fact of using the Bible in the public schools, nor the content of
any particular version, that is offensive, but only the manner
in Page 374 U. S. 284 which it is used. [ Footnote
3/60 ] For such persons, the anathema of public communion is
even more pronounced when prayer is involved. Many deeply devout
persons have always regarded prayer as a necessarily private
experience. [ Footnote 3/61 ] One
Protestant group recently commented, for example: "When one thinks
of prayer as sincere outreach of a Page 374 U. S. 285 human soul to the Creator, 'required prayer' becomes an
absurdity." [ Footnote 3/62 ] There
is a similar problem with respect to comment upon the passages of
Scripture which are to be read. Most present statutes forbid
comment, and this practice accords with the views of many religious
groups as to the manner in which the Bible should be read. However,
as a recent survey discloses, scriptural passages read without
comment frequently convey no message to the younger children in the
school. Thus, there has developed a practice in some schools of
bridging the gap between faith and understanding by means of
"definitions," even where "comment" is forbidden by statute.
[ Footnote 3/63 ] The present
practice, therefore, poses a difficult dilemma: while Bible reading
is almost universally required to be without comment, since only by
such a prohibition can sectarian interpretation be excluded from
the classroom, Page 374 U. S. 286 the rule breaks down at the point at which rudimentary
definitions of Biblical terms are necessary for comprehension if
the exercise is to be meaningful at all.

															It has been suggested that a tentative solution to these
problems may lie in the fashioning of a "common core" of theology
tolerable to all creeds but preferential to none. [ Footnote 3/64 ] But as one commentator has recently
observed, "[h]istory is not encouraging to" those who hope to
fashion a "common denominator of religion detached from its
manifestation in any organized church." Sutherland, Establishment
According to Engel, 76 Harv.L.Rev. 25, 51 (1962). Thus,
the notion of a "common core" litany or supplication offends many
deeply devout worshippers who do not find clearly sectarian
practices objectionable. [ Footnote
3/65 ] Father Gustave Weigel has recently expressed Page 374 U. S. 287 a widely shared view:

															"The moral code held by each separate religious community can
reductively be unified, but the consistent particular believer
wants no such reduction. [ Footnote
3/66 ]"

															And, as the American Council on Education warned several years
ago,

															"The notion of a common core suggests a watering down of the
several faiths to the point where common essentials appear. This
might easily lead to a new sect -- a public school sect -- which
would take its place alongside the existing faiths and compete with
them. [ Footnote 3/67 ]" Engel is surely authority that nonsectarian religious
practices, equally with sectarian exercises, violate the
Establishment Clause. Moreover, even if the Establishment Clause
were oblivious to nonsectarian religious practices, I think it
quite likely that the "common core" approach would be sufficiently
objectionable to many groups to be foreclosed by the prohibitions
of the Free Exercise Clause. C A third element which is said to absolve the practices involved
in these cases from the ban of the religious guarantees of the
Constitution is the provision to excuse or exempt students who wish
not to participate. Insofar as these practices are claimed to
violate the Establishment Page 374 U. S. 288 Clause, I find the answer which the District Court gave after
our remand of Schempp to be altogether dispositive:

															"The fact that some pupils, or theoretically all pupils, might
be excused from attendance at the exercises does not mitigate the
obligatory nature of the ceremony. . . . The exercises are held in
the school buildings, and perforce are conducted by and under the
authority of the local school authorities and during school
sessions. Since the statute requires the reading of the 'Holy
Bible,' a Christian document, the practice, as we said in our first
opinion, prefers the Christian religion. The record demonstrates
that it was the intention of the General Assembly of the
Commonwealth of Pennsylvania to introduce a religious ceremony into
the public schools of the Commonwealth."

															201 F. Supp. at 819. Thus, the short, and to me sufficient,
answer is that the availability of excusal or exemption simply has
no relevance to the establishment question, if it is once found
that these practices are essentially religious exercises designed
at least in part to achieve religious aims through the use of
public school facilities during the school day.

															The more difficult question, however, is whether the
availability of excusal for the dissenting child serves to refute
challenges to these practices under the Free Exercise Clause. While
it is enough to decide these cases to dispose of the establishment
questions, questions of free exercise are so inextricably
interwoven into the history and present status of these practices
as to justify disposition of this second aspect of the excusal
issue. The answer is that the excusal procedure itself necessarily
operates in such a way as to infringe the rights of free exercise
of those children who wish to be excused. We have held in Barnette and Torcaso, respectively, that a State
may require neither public school students nor candidates Page 374 U. S. 289 for an office of public trust to profess beliefs offensive to
religious principles. By the same token, the State could not
constitutionally require a student to profess publicly his
disbelief as the prerequisite to the exercise of his constitutional
right of abstention. And apart from Torcaso and Barnette, I think Speiser v. Randall, 357 U. S. 513 ,
suggests a further answer. We held there that a State may not
condition the grant of a tax exemption upon the willingness of
those entitled to the exemption to affirm their loyalty to the
Government, even though the exemption was itself a matter of grace,
rather than of constitutional right. We concluded that to impose
upon the eligible taxpayers the affirmative burden of proving their
loyalty impermissibly jeopardized the freedom to engage in
constitutionally protected activities close to the area to which
the loyalty oath related. Speiser v. Randall seems to me
to dispose of two aspects of the excusal or exemption procedure now
before us. First, by requiring what is tantamount in the eyes of
teachers and schoolmates to a profession of disbelief, or at least
of nonconformity, the procedure may well deter those children who
do not wish to participate for any reason based upon the dictates
of conscience from exercising an indisputably constitutional right
to be excused. [ Footnote 3/68 ]
Thus, the excusal Page 374 U. S. 290 provision in its operation subjects them to a cruel dilemma. In
consequence, even devout children may well avoid claiming their
right and simply continue to participate in exercises distasteful
to them because of an understandable reluctance to be stigmatized
as atheists or nonconformists simply on the basis of their
request.

															Such reluctance to seek exemption seems all the more likely in
view of the fact that children are disinclined at this age to step
out of line or to flout "peer-group norms." Such is the widely held
view of experts who have studied the behaviors and attitudes of
children. [ Footnote 3/69 ] This is
also Page 374 U. S. 291 the basis of Mr. Justice Frankfurter's answer to a similar
contention made in the McCollum case:

															"That a child is offered an alternative may reduce the
constraint; it does not eliminate the operation of influence by the
school in matters sacred to conscience and outside the school's
domain. The law of imitation operates, and nonconformity is not
an Page 374 U. S. 292 outstanding characteristic of children. The result is an obvious
pressure upon children to attend."

															333 U.S. at 333 U. S. 227 .
Also apposite is the answer given more than 70 years ago by the
Supreme Court of Wisconsin to the argument that an excusal
provision saved a public school devotional exercise from
constitutional invalidation:

															". . . the excluded pupil loses caste with his fellows, and is
liable to be regarded with aversion, and subjected to reproach and
insult. But it is a sufficient refutation of the argument that the
practice in question tends to destroy the equality of the pupils
which the constitution seeks to establish and protect, and puts a
portion of them to serious disadvantage in many ways with respect
to the others." State ex rel. Weiss v. District Board of School District No.
8, 76 Wis. 177, 200, 44 N.W. 967, 975. And, 50 years ago, a
like answer was offered by the Louisiana Supreme Court:

															"Under such circumstances, the children would be excused from
the opening exercises . . . because of their religious beliefs. And
excusing such children on religious grounds, although the number
excused might be very small, would be a distinct preference in
favor of the religious beliefs of the majority, and would work a
discrimination against those who were excused. The exclusion of a
pupil under such circumstances puts him in a class by himself; it
subjects him to a religious stigma, and all because of his
religious belief. Equality in public education would be destroyed
by such act, under a Constitution which seeks to establish equality
and freedom in religious matters." Herold v. Parish Board of School Directors, 136 La.
1034, 1049-1050, 68 So. 116, 121. See also Tudor v. Board of
Education, 14 N.J. 31, 48-52, Page 374 U. S. 293 100
A.2d 857 , 867-868; Brown v. Orange County Board of Public
Instruction, 128 So. 2d 181, 185 (Fla.App.). Speiser v. Randall also suggests the answer to a
further argument based on the excusal procedure. It has been
suggested by the School Board, in Schempp, that we ought
not pass upon the appellees' constitutional challenge at least
until the children have availed themselves of the excusal procedure
and found it inadequate to redress their grievances. Were the right
to be excused not itself of constitutional stature, I might have
some doubt about this issue. But we held in Speiser that
the constitutional vice of the loyalty oath procedure discharged
any obligation to seek the exemption before challenging the
constitutionality of the conditions upon which it might have been
denied. 357 U.S. at 357 U. S. 529 .
Similarly, we have held that one need not apply for a permit to
distribute constitutionally protected literature, Lovell v.
Griffin, 303 U. S. 444 , or
to deliver a speech, Thomas v. Collins, 323 U.
S. 516 , before he may attack the constitutionality of a
licensing system of which the defect is patent. Insofar as these
cases implicate only questions of establishment, it seems to me
that the availability of an excuse is constitutionally irrelevant.
Moreover, the excusal procedure seems to me to operate in such a
way as to discourage the free exercise of religion on the part of
those who might wish to utilize it, thereby rendering it
unconstitutional in an additional and quite distinct respect.

															To summarize my views concerning the merits of these two cases:
the history, the purpose and the operation of the daily prayer
recital and Bible reading leave no doubt that these practices,
standing by themselves, constitute an impermissible breach of the
Establishment Clause. Such devotional exercises may well serve
legitimate nonreligious purposes. To the extent, however, that such
purposes Page 374 U. S. 294 are really without religious significance, it has never been
demonstrated that secular means would not suffice. Indeed, I would
suggest that patriotic or other nonreligious materials might
provide adequate substitutes -- inadequate only to the extent that
the purposes now served are indeed directly or indirectly
religious. Under such circumstances, the States may not employ
religious means to reach a secular goal unless secular means are
wholly unavailing. I therefore agree with the Court that the
judgment in Schempp, No. 142, must be affirmed, and that,
in Murray, No. 119, must be reversed. V These considerations bring me to a final contention of the
school officials in these cases: that the invalidation of the
exercises at bar permits this Court no alternative but to declare
unconstitutional every vestige, however slight, of cooperation or
accommodation between religion and government. I cannot accept that
contention. While it is not, of course, appropriate for this Court
to decide questions not presently before it, I venture to suggest
that religious exercises in the public schools present a unique
problem. For 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.

															Specifically, I believe that the line we must draw between the
permissible and the impermissible is one which accords with history
and faithfully reflects the understanding of the Founding Fathers.
It is a line which the Court has consistently sought to mark in its
decisions expounding the religious guarantees of the First
Amendment. What the Framers meant to foreclose, and what our
decisions under the Establishment Clause have forbidden, Page 374 U. S. 295 are 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. When the
secular and religious institutions become involved in such a
manner, there inhere in the relationship precisely those dangers --
as much to church as to state -- which the Framers feared would
subvert religious liberty and the strength of a system of secular
government. On the other hand, there may be myriad forms of
involvements of government with religion which do not import such
dangers, and therefore should not, in my judgment, be deemed to
violate the Establishment Clause. Nothing in the Constitution
compels the organs of government to be blind to what everyone else
perceives -- that religious differences among Americans have
important and pervasive implications for our society. Likewise,
nothing in the Establishment Clause forbids the application of
legislation having purely secular ends in such a way as to
alleviate burdens upon the free exercise of an individual's
religious beliefs. Surely the Framers would never have understood
that such a construction sanctions that involvement which violates
the Establishment Clause. Such a conclusion can be reached, I would
suggest, only by using the words of the First Amendment to defeat
its very purpose.

															The line between permissible and impermissible forms of
involvement between government and religion has already been
considered by the lower federal and state courts. I think a brief
survey of certain of these forms of accommodation will reveal that
the First Amendment commands not official hostility toward
religion, but only a strict neutrality in matters of religion.
Moreover, it may serve to suggest that the scope of our holding
today Page 374 U. S. 296 is to be measured by the special circumstances under which these
cases have arisen, and by the particular dangers to church and
state which religious exercises in the public schools present. It
may be helpful for purposes of analysis to group these other
practices and forms of accommodation into several rough
categories.

															A. The Conflict Between Establishment and Free
Exercise. -- There are certain practices, conceivably
violative of the Establishment Clause, the striking down of which
might seriously interfere with certain religious liberties also
protected by the First Amendment. [ Footnote 3/70 ] Provisions for churches and chaplains at
military establishments for those in the armed services may afford
one such example. [ Footnote
3/71 ] Page 374 U. S. 297 The like provision by state and federal governments for
chaplains in penal institutions may afford another example.
[ Footnote 3/72 ] It is argued that
such provisions may be assumed to contravene the Establishment
Clause, yet be sustained on constitutional grounds as necessary to
secure to the members of the Armed Forces and prisoners those
rights of worship guaranteed under the Free Exercise Clause. Since
government has deprived such persons of the opportunity Page 374 U. S. 298 to practice their faith at places of their choice, the argument
runs, government may, in order to avoid infringing the free
exercise guarantees, provide substitutes where it requires such
persons to be. Such a principle might support, for example, the
constitutionality of draft exemptions for ministers and divinity
students, [ Footnote 3/73 ] cf.
Selective Draft Law Cases, 245 U. S. 366 , 245 U. S.
389 -390; of the excusal of children from school on their
respective religious holidays, and of the allowance by government
of temporary use of public buildings by religious organizations
when their own churches have become unavailable because of a
disaster or emergency. [ Footnote
3/74 ]

															Such activities and practices seem distinguishable from the
sponsorship of daily Bible reading and prayer recital. For one
thing, there is no element of coercion present in the appointment
of military or prison chaplains; the soldier or convict who
declines the opportunities for worship would not ordinarily subject
himself to the suspicion or obloquy of his peers. Of special
significance to this distinction is the fact that we are here
usually dealing Page 374 U. S. 299 with adults, not with impressionable children as in the public
schools. Moreover, the school exercises are not designed to provide
the pupils with general opportunities for worship denied them by
the legal obligation to attend school. The student's compelled
presence in school for five days a week in no way renders the
regular religious facilities of the community less accessible to
him than they are to others. The situation of the school child is
therefore plainly unlike that of the isolated soldier or the
prisoner.

															The State must be steadfastly neutral in all matters of faith,
and neither favor nor inhibit religion. In my view, government
cannot sponsor religious exercises in the public schools without
jeopardizing that neutrality. On the other hand, hostility, not
neutrality, would characterize the refusal to provide chaplains and
places of worship for prisoners and soldiers cut off by the State
from all civilian opportunities for public communion, the
withholding of draft exemptions for ministers and conscientious
objectors, or the denial of the temporary use of an empty public
building to a congregation whose place of worship has been
destroyed by fire or flood. I do not say that government must
provide chaplains or draft exemptions, or that the courts should
intercede if it fails to do so.

															B. Establishment and Exercises in Legislative Bodies. -- The saying of invocational prayers in legislative chambers,
state or federal, and the appointment of legislative chaplains,
might well represent no involvements of the kind prohibited by the
Establishment Clause. [ Footnote
3/75 ] Legislators, federal and state, are mature adults who may
presumably absent themselves from such public and ceremonial Page 374 U. S. 300 exercises without incurring any penalty, direct or indirect. It
may also be significant that, at least in the case of the Congress,
Art. I, § 5, of the Constitution makes each House the monitor of
the "Rules of its Proceedings" so that it is at least arguable
whether such matters present "political questions" the resolution
of which is exclusively confided to Congress. See Baker v.
Carr, 369 U. S. 186 , 369 U.S. 232 . Finally,
there is the difficult question of who may be heard to challenge
such practices. See Elliott v. White, 23 F.2d 997.

															C. Non-Devotional Use of the Bible in the Public
Schools. -- The holding of the Court today plainly does not
foreclose teaching about the Holy Scriptures or about the
differences between religious sects in classes in literature or
history. Indeed, whether or not the Bible is involved, it would be
impossible to teach meaningfully many subjects in the social
sciences or the humanities without some mention of religion.
[ Footnote 3/76 ] To what extent,
and at what points in the curriculum, religious materials should be
cited are matters which the courts ought to entrust very largely to
the experienced officials who superintend our Nation's public
schools. They are experts in such matters, and we are not. We
should heed Mr. Justice Jackson's caveat that any attempt by this
Court to announce curricular standards would be

															"to decree a uniform, rigid and, if we are consistent, an
unchanging standard for countless school boards representing Page 374 U. S. 301 and serving highly localized groups which not only differ from
each other, but which themselves from time to time change
attitudes." Illinois ex rel. McCollum v. Board of Education, supra, at 333 U. S.
237 .

															We do not, however, in my view, usurp the jurisdiction of school
administrators by holding, as we do today, that morning devotional
exercises in any form are constitutionally invalid. But there is no
occasion now to go further and anticipate problems we cannot judge
with the material now before us. Any attempt to impose rigid limits
upon the mention of God or references to the Bible in the classroom
would be fraught with dangers. If it should sometime hereafter be
shown that, in fact, religion can play no part in the teaching of a
given subject without resurrecting the ghost of the practices we
strike down today, it will then be time enough to consider
questions we must now defer.

															D. Uniform Tax Exemptions Incidentally Available to
Religious Institutions. -- Nothing we hold today questions the
propriety of certain tax deductions or exemptions which
incidentally benefit churches and religious institutions, along
with many secular charities and nonprofit organizations. If
religious institutions benefit, it is in spite of, rather than
because of, their religious character. For religious institutions
simply share benefits which government makes generally available to
educational, charitable, and eleemosynary groups. [ Footnote 3/77 ] There is no indication that taxing
authorities have used such benefits in any way to subsidize worship
or foster belief in God. And as Page 374 U. S. 302 among religious beneficiaries, the tax exemption or deduction
can be truly nondiscriminatory, available on equal terms to small
as well as large religious bodies, to popular and unpopular sects,
and to those organizations which reject, as well as those which
accept, a belief in God. [ Footnote
3/78 ]

															E. Religious Considerations in Public Welfare Programs. -- Since government may not support or directly aid religious activities without violating the Establishment Clause,
there might be some doubt whether nondiscriminatory programs of
governmental aid may constitutionally include individuals who become eligible wholly or partially for religious reasons. For
example, it might be suggested that, where a State provides
unemployment compensation generally to those who are unable to find
suitable work, it may not extend such benefits to persons who are
unemployed by reason of religious beliefs or practices without
thereby establishing the religion to which those persons belong.
Therefore, the argument runs, the State may avoid an establishment
only by singling out and excluding such persons on the ground that
religious beliefs or practices have made them potential
beneficiaries. Such a construction would, it seems to me, require
government to impose religious discriminations and disabilities,
thereby jeopardizing the free exercise of religion, in order to
avoid what is thought to constitute an establishment.

															The inescapable flaw in the argument, I suggest, is its quite
unrealistic view of the aims of the Establishment Clause. The
Framers were not concerned with the effects of certain incidental
aids to individual worshippers which come about as by-products of
general and nondiscriminatory welfare programs. If such benefits
serve to make Page 374 U. S. 303 easier or less expensive the practice of a particular creed, or
of all religions, it can hardly be said that the purpose of the
program is in any way religious, or that the consequence of its
nondiscriminatory application is to create the forbidden degree of
interdependence between secular and sectarian institutions. I
cannot therefore accept the suggestion, which seems to me implicit
in the argument outlined here, that every judicial or
administrative construction which is designed to prevent a public
welfare program from abridging the free exercise of religious
beliefs, is for, that reason, ipso facto, an establishment
of religion.

															F. Activities Which, Though Religious in Origin, Have Ceased
to Have Religious Meaning. -- As we noted in our Sunday
Law decisions, nearly every criminal law on the books can be
traced to some religious principle or inspiration. But that does
not make the present enforcement of the criminal law in any sense
an establishment of religion, simply because it accords with widely
held religious principles. As we said in McGowan v.
Maryland, 366 U. S. 420 , 366 U. S.
442 ,

															"the 'Establishment' Clause does not ban federal or state
regulation of conduct whose reason or effect merely happens to
coincide or harmonize with the tenets of some or all
religions."

															This rationale suggests that the use of the motto "In God We
Trust" on currency, on documents and public buildings and the like
may not offend the clause. It is not that the use of those four
words can be dismissed as " de minimis " -- for I suspect
there would be intense opposition to the abandonment of that motto.
The truth is that we have simply interwoven the motto so deeply
into the fabric of our civil polity that its present use may well
not present that type of involvement which the First Amendment
prohibits.

															This general principle might also serve to insulate the various
patriotic exercises and activities used in the public schools and
elsewhere which, whatever may have been Page 374 U. S. 304 their origins, no longer have a religious purpose or meaning.
The reference to divinity in the revised pledge of allegiance, for
example, may merely recognize the historical fact that our Nation
was believed to have been founded "under God." Thus, reciting the
pledge may be no more of a religious exercise than the reading
aloud of Lincoln's Gettysburg Address, which contains an allusion
to the same historical fact.

															The principles which we reaffirm and apply today can hardly be
thought novel or radical. They are, in truth, as old as the
Republic itself, and have always been as integral a part of the
First Amendment as the very words of that charter of religious
liberty. No less applicable today than they were when first
pronounced a century ago, one year after the very first court
decision involving religious exercises in the public schools, are
the words of a distinguished Chief Justice of the Commonwealth of
Pennsylvania, Jeremiah S. Black:

															"The manifest object of the men who framed the institutions of
this country, was to have a State without religion, and a Church without politics -- that is to say, they meant that
one should never be used as an engine for any purpose of the other,
and that no man's rights in one should be tested by his opinions
about the other. As the Church takes no note of men's political
differences, so the State looks with equal eye on all the modes of
religious faith. . . . Our fathers seem to have been perfectly
sincere in their belief that the members of the Church would be
more patriotic, and the citizens of the State more religious, by
keeping their respective functions entirely separate."

															Essay on Religious Liberty, in Black, ed., Essays and Speeches
of Jeremiah S. Black (1886), 53. Page 374 U. S. 305 [ Footnote 3/1 ]

															Locke, A Letter Concerning Toleration, in 35 Great Books of the
Western World (Hutchins ed.1952), 2.

															[ Footnote 3/2 ]

															Representative Daniel Carroll of Maryland during debate upon the
proposed Bill of Rights in the First Congress, August 15, 1789, I
Annals of Cong. 730.

															[ Footnote 3/3 ] See Healey, Jefferson on Religion in Public Education
(1962); Boles, The Bible, Religion, and the Public Schools (1961),
16-21; Butts, The American Tradition in Religion and Education
(1950), 119-130; Cahn, On Government and Prayer, 37 N.Y.U.L.Rev.
981 (1962); Costanzo, Thomas Jefferson, Religious Education and
Public Law, 8 J.Pub.Law 81 (1959); Comment, The Supreme Court, the
First Amendment, and Religion in the Public Schools, 63 Col.L.Rev.
73, 79-83 (1963).

															[ Footnote 3/4 ]

															Jefferson's caveat was, in full:

															"Instead, therefore, of putting the Bible and Testament into the
hands of the children at an age when their judgments are not
sufficiently matured for religious inquiries, their memories may
here be stored with the most useful facts from Grecian, Roman,
European and American history."

															2 Writings of Thomas Jefferson (Memorial ed.1903), 204. Compare Jefferson's letter to his nephew, Peter Carr, when
the latter was about to begin the study of law, in which Jefferson
outlined a suggested course of private study of religion, since
"[y]our reason is now mature enough to examine this object." Letter
to Peter Carr, August 10, 1787, in Padover, The Complete Jefferson
(1943), 1058. Jefferson seems to have opposed sectarian instruction
at any level of public education, see Healey, Jefferson on
Religion in Public Education (1962), 206-210, 256, 264-265. The
absence of any mention of religious instruction in the projected
elementary and secondary schools contrasts significantly with
Jefferson's quite explicit proposals concerning religious
instruction at the University of Virginia. His draft for "A Bill
for the More General Diffusion of Knowledge," in 1779, for example,
outlined in some detail the secular curriculum for the public
schools, while avoiding any references to religious studies. See Padover, supra, at 1048-1054. The later draft
of an "Act for Establishing Elementary Schools" which Jefferson
submitted to the Virginia General Assembly in 1817 provided
that

															"no religious reading, instruction or exercise, shall be
prescribed or practiced inconsistent with the tenets of any
religious sect or denomination."

															Padover, supra, at 1076. Reliance upon Jefferson's
apparent willingness to permit certain religious instruction at the
University seems, therefore, to lend little support to such
instruction in the elementary and secondary schools. Compare,
e.g., Corwin, A Constitution of Powers in a Secular State
(1951), 104-106; Costanzo, Thomas Jefferson, Religious Education
and Public Law, 8 J.Pub.Law 81, 100-106 (1959).

															[ Footnote 3/5 ] Cf. Mr. Justice Rutledge's observations in Everson
v. Board of Education, 330 U. S. 1 , 330 U. S. 53 -54
(dissenting opinion). See also Fellman, Separation of
Church and State in the United States: A Summary View, 1950
Wis.L.Rev. 427, 428-429; Rosenfield, Separation of Church and State
in the Public Schools, 22 U. of Pitt.L.Rev. 561, 569 (1961);
MacKinnon, Freedom? -- or Toleration? The Problem of Church and
State in the United States, [1959] Pub.Law 374. One author has
suggested these reasons for cautious application of the history of
the Constitution's religious guarantees to contemporary
problems:

															"First, the brevity of Congressional debate and the lack of
writings on the question by the framers make any historical
argument inconclusive, and open to serious question. Second, the
amendment was designed to outlaw practices which had existed before
its writing, but there is no authoritative declaration of the
specific practices at which it was aimed. And third, most of the
modern religious freedom cases turn on issues which were, at most,
academic in 1789, and perhaps did not exist at all. Public
education was almost nonexistent in 1789, and the question of
religious education in public schools may not have been
foreseen."

															Beth, The American Theory of Church and State (1958), 88.

															[ Footnote 3/6 ] See generally, for discussion of the early efforts for
disestablishment of the established colonial churches, and of the
conditions against which the proponents of separation of church and
state contended, Sweet, The Story of Religion in America (1950), c.
XIII; Cobb, The Rise of Religious Liberty in America (1902), c. IX;
Eckenrode, Separation of Church and State in Virginia (1910);
Brant, James Madison -- The Nationalist, 1780-1787 (1948), c. XXII;
Bowers, The Young Jefferson (1945), 193-199; Butts, The American
Tradition in Religion and Education (1950), c. II; Kruse, The
Historical Meaning and Judicial Construction of the Establishment
of Religion Clause of the First Amendment, 2 Washburn L.J. 65,
79-83 (1962). Compare also Alexander Hamilton's conception
of "the characteristic difference between a tolerated and
established religion" and his grounds of opposition to the latter,
in his remarks on the Quebec Bill in 1775, 2 Works of Alexander
Hamilton (Hamilton ed. 1850), 133-138. Compare, for the
view that contemporary evidence reveals a design of the Framers to
forbid not only formal establishment of churches, but various forms
of incidental aid to or support of religion, Lardner, How Far Does
the Constitution Separate Church and State? 45 Am.Pol.Sci.Rev. 110,
112-115 (1951).

															[ Footnote 3/7 ]

															The origins of the modern movement for free state supported
education cannot be fixed with precision. In England, the Levellers
unavailingly urged in their platform of 1649 the establishment of
free primary education for all, or at least for boys. See Brailsford, The Levellers and the English Revolution (1961), 534.
In the North American Colonies, education was, almost without
exception, under private sponsorship and supervision, frequently
under control of the dominant Protestant sects. This condition
prevailed after the Revolution and into the first quarter of the
nineteenth century. See generally Mason, Moral Values and
Secular Education (1950), c. II; Thayer, The Role of the School in
American Society (1960), c. X; Greene, Religion and the State: The
Making and Testing of an American Tradition (1941), 120-122. Thus,
Virginia's colonial Governor Berkeley exclaimed in 1671:

															"I thank God there are no free schools nor printing, and I hope
we shall not have them these hundred years; for learning has
brought disobedience, and heresy, and sects into the world. . .
."

															(Emphasis deleted.) Bates, Religious Liberty: An Inquiry (1945),
327.

															The exclusively private control of American education did not,
however, quite survive Berkeley's expectations. Benjamin Franklin's
proposals in 1749 for a Philadelphia Academy heralded the dawn of
publicly supported secondary education, although the proposal did
not bear immediate fruit. See Johnson and Yost, Separation
of Church and State in the United States (1948), 26-27. Jefferson's
elaborate plans for a public school system in Virginia came to
naught after the defeat in 1796 of his proposed Elementary School
Bill, which found little favor among the wealthier legislators. See Bowers, The Young Jefferson (1945), 182-186. It was
not until the 1820's and 1830's, under the impetus of Jacksonian
democracy, that a system of public education really took root in
the United States. See 1 Beard, The Rise of American
Civilization (1937), 810-818. One force behind the development of
secular public schools may have been a growing dissatisfaction with
the tightly sectarian control over private education, see Harner, Religion's Place in General Education (1949), 29-30. Yet
the burgeoning public school systems did not immediately supplant
the old sectarian and private institutions; Alexis de Tocqueville,
for example, remarked after his tour of the Eastern States in 1831
that "[a]lmost all education is entrusted to the clergy." 1
Democracy in America (Bradley ed.1945) 309, n. 4. And
compare Lord Bryce's observations, a half century later, on
the still largely denominational character of American higher
education, 2 The American Commonwealth (1933), 734-735.

															Efforts to keep the public schools of the early nineteenth
century free from sectarian influence were of two kinds. One took
the form of constitutional provisions and statutes adopted by a
number of States forbidding appropriations from the public treasury
for the support of religious instruction in any manner. See Moehlman, The Wall of Separation Between Church and
State (1951), 132-135; Lardner, How Far Does the Constitution
Separate Church and State? 45 Am.Pol.Sci.Rev. 110, 122 (1951). The
other took the form of measures directed against the use of
sectarian reading and teaching materials in the schools. The texts
used in the earliest public schools had been largely taken over
from the private academies, and retained a strongly religious
character and content. See Nichols, Religion and American
Democracy (1959), 640; Kinney, Church and State, The Struggle for
Separation in New Hampshire, 1630-1900 (1955), 150-153. In 1827,
however, Massachusetts enacted a statute providing that school
boards might not thereafter

															"direct any school books to be purchased or used, in any of the
schools . . . which are calculated to favour any particular
religious sect or tenet."

															2 Stokes, Church and State in the United States (1950), 53. For
further discussion of the background of the Massachusetts law and
difficulties in its early application, see Dunn, What
Happened to Religious Education? (1958), c. IV. As other States
followed the example of Massachusetts, the use of sectarian texts
was in time as widely prohibited as the appropriation of public
funds for religious instruction.

															Concerning the evolution of the American public school systems
free of sectarian influence, compare Mr. Justice
Frankfurter's account:

															"It is pertinent to remind that the establishment of this
principle of Separation in the field of education was not due to
any decline in the religious beliefs of the people. Horace Mann was
a devout Christian, and the deep religious feeling of James Madison
is stamped upon the Remonstrance. The secular public school did not
imply indifference to the basic role of religion in the life of the
people, nor rejection of religious education as a means of
fostering it. The claims of religion were not minimized by refusing
to make the public schools agencies for their assertion. The
nonsectarian or secular public school was the means of reconciling
freedom in general with religious freedom. The sharp confinement of
the public schools to secular education was a recognition of the
need of a democratic society to educate its children, insofar as
the State undertook to do so, in an atmosphere free from pressures
in a realm in which pressures are most resisted and where conflicts
are most easily and most bitterly engendered." Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S.
216 .

															[ Footnote 3/8 ]

															The comparative religious homogeneity of the United States at
the time the Bill of Rights was adopted has been considered in
Haller, The Puritan Background of the First Amendment, in Read ed.,
The Constitution Reconsidered (1938) , 131, 133-134; Beth, The
American Theory of Church and State (1958), 74; Kinney, Church and
State, The Struggle for Separation in New Hampshire, 1630-1900
(1955), 155-161. However, Madison suggested in the Fifty-first
Federalist that the religious diversity which existed at the time
of the Constitutional Convention constituted a source of strength
for religious freedom, much as the multiplicity of economic and
political interests enhanced the security of other civil rights.
The Federalist (Cooke ed.1961), 351-352.

															[ Footnote 3/9 ] See Comment, The Power of Courts Over the Internal
Affairs of Religious Groups, 43 Calif.L.Rev. 322 (1955); Comment,
Judicial Intervention in Disputes Within Independent Church Bodies,
54 Mich.L.Rev. 102 (1955); Note, Judicial Intervention in Disputes
Over the Use of Church Property, 75 Harv.L.Rev. 1142 (1962). Compare 43 U. S. Girard's
Executors, 2 How. 127. The principle of judicial
nonintervention in essentially religious disputes appears to have
been reflected in the decisions of several state courts declining
to enforce essentially private agreements concerning the religious
education and worship of children of separated or divorced parents. See, e.g., Hackett v. Hackett, 78 Ohio Abs. 485, 150
N.E.2d 431; Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d
289 ; Friedman, The Parental Right to Control the Religious
Education of a Child, 29 Harv.L.Rev. 485 (1916); 72 Harv.L.Rev. 372
(1958); Note, 10 West. Res.L.Rev. 171 (1959).

															Governmental nonintervention in religious affairs and
institutions seems assured by Article 26 of the Constitution of
India, which provides:

															"Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right --"

															"(a) to establish and maintain institutions for religious and
charitable purposes;"

															"(b) to manage its own affairs in matters of religion;"

															"(c) to own and acquire movable and immovable property; and"

															"(d) to administer such property in accordance with law." See 1 Chaudhri, Constitutional Rights and Limitations
(1955), 875. This Article does not, however, appear to have
completely foreclosed judicial inquiry into the merits of
intradenominational disputes. See Gledhill, Fundamental
Rights in India (1955), 101-102.

															[ Footnote 3/10 ]

															For a discussion of the difficulties inherent in the Ballard case, see Kurland, Religion and the Law
(1962), 75-79. This Court eventually reversed the convictions on
the quite unrelated ground that women had been systematically
excluded from the jury, Ballard v. United States, 329 U. S. 187 . For
discussions of the difficulties in interpreting and applying the
First Amendment so as to foster the objective of neutrality without
hostility, see, e.g., Katz, Freedom of Religion and State
Neutrality, 20 U. of Chi.L.Rev. 426, 438 (1953); Kauper, Church,
State, and Freedom: A Review, 52 Mich.L.Rev. 829, 842 (1954). Compare, for an interesting apparent attempt to avoid the Ballard problem at the international level, Article 3 of
the Multilateral Treaty between the United States and certain
American Republics, which provides that extradition will not be
granted, inter alia, when "the offense is . . . directed
against religion." Blakely, American State Papers and Related
Documents on Freedom in Religion (4th rev. ed.1949), 316.

															[ Footnote 3/11 ] See Kurland, Religion and the Law (1962), 32-34.

															[ Footnote 3/12 ] Compare the treatment of an apparently very similar
problem in Article 28 of the Constitution of India:

															"(1) No religious instruction shall be provided in any
educational institution wholly maintained out of State funds."

															"(2) Nothing in clause (1) shall apply to an educational
institution which is administered by the State but has been
established under any endowment or trust which requires that
religious instruction shall be imparted in such institution."

															1 Chaudhri, Constitutional Rights and Limitations (1955),
875-876, 939.

															[ Footnote 3/13 ] See Kurland, Religion and the Law (1962), 231; Fellman,
Separation of Church and State in the United State: A Summary View,
1950 Wis.L.Rev. 427, 442.

															[ Footnote 3/14 ]

															This distinction, implicit in the First Amendment, had been made
explicit in the original Virginia Bill of Rights provision that

															"all men should enjoy the fullest toleration in the exercise of
religion according to the dictates of conscience, unpunished and
unrestrained by the magistrate, unless, under color of religion,
any man disturb the peace, the happiness, or safety of
society." See Cobb, The Rise of Religious Liberty in America
(1902), 491. Concerning various legislative limitations and
restraints upon religiously motivated behavior which endangers or
offends society, see Manwaring, Render Unto Caesar: The
Flag-Salute Controversy (1962), 412. Various courts have applied
this principle to proscribe certain religious exercises or
activities which were thought to threaten the safety or morals of
the participants or the rest of the community, e.g., State v.
Massey, 229 N.C. 734, 51 S.E.2d 179; Harden v. State, 188 Tenn. 17, 216 S.W.2d 708; Lawson v. Commonwealth, 291
Ky. 437, 164 S.W.2d 972; cf. Sweeney v. Webb, 33
Tex.Civ.App. 324, 76 S.W. 766.

															That the principle of these cases, and the distinction between
belief and behavior, are susceptible of perverse application may be
suggested by Oliver Cromwell's mandate to the besieged Catholic
community in Ireland:

															"As to freedom of conscience, I meddle with no man's conscience;
but if you mean by that liberty to celebrate the Mass, I would have
you understand that in no place where the power of the Parliament
of England prevails shall that be permitted."

															Quoted in Hook, The Paradoxes of Freedom (1962), 23.

															[ Footnote 3/15 ]

															With respect to the decision in Hamilton v. Regents, compare two recent comments: Kurland, Religion and the Law (1962),
40, and French, Comment, Unconstitutional Conditions: An Analysis
50 Geo.L.J. 234, 246 (1961).

															[ Footnote 3/16 ] See generally as to the background and history of the Barnette case, Manwaring, Render Unto Caesar: The
Flag-Salute Controversy (1962), especially at 252-253. Compare, for the interesting treatment of a problem
similar to that of Barnette, in a nonconstitutional
context, Chabot v. Les Commissaires D'Ecoles de
Lamorandiere, [1957] Que.B.R. 707, noted in 4 McGill L.J. 268
(1958).

															[ Footnote 3/17 ] See Barron v.
Baltimore , 7 Pet. 243; Permoli v.
New Orleans , 3 How. 589, 44 U. S. 609 ; cf. 46 U. S. Ohio, 5 How. 410, 46 U. S.
434 -435; Withers v.
Buckley , 20 How. 84, 61 U. S. 89 -91.
As early as 1825, however, at least one commentator argued that the
guarantees of the Bill of Rights, excepting only those of the First
and Seventh Amendments, were meant to limit the powers of the
States. Rawle, A View of the Constitution of the United States of
America (1825), 120-130.

															[ Footnote 3/18 ]

															In addition to the statement of this Court in Meyer, at
least one state court assumed as early as 1921 that claims of
abridgment of the free exercise of religion in the public schools
must be tested under the guarantees of the First Amendment, as well
as those of the state constitution. Hardwick v. Board of School
Trustees, 54 Cal. App. 696, 704-705, 205 P. 49, 52. See Louisell and Jackson, Religion, Theology, and Public
Higher Education, 50 Cal.L.Rev. 751, 772 (1962). Even before the
Fourteenth Amendment, New York State enacted a general common
school law in 1844 which provided that no religious instruction
should be given which could be construed to violate the rights of
conscience "as secured by the constitution of this state and the
United States." N.Y.Laws, 1844, c. 320, § 12.

															[ Footnote 3/19 ] See, e.g., Snee, Religious Disestablishment and the
Fourteenth Amendment, 1954 Wash.U.L.Q. 371, 373-394; Kruse, The
Historical Meaning and Judicial Construction of the Establishment
of Religion Clause of the First Amendment, 2 Washburn L.J. 65,
84-85, 127130 (1962); Katz, Religion and American Constitutions,
Address at Northwestern University Law School, March 20, 1963,
pp.6-7. But see the debate in the Constitutional
Convention over the question whether it was necessary or advisable
to include among the enumerated powers of the Congress a power "to
establish an University, in which no preferences or distinctions
should be allowed on account of religion." At least one delegate
thought such an explicit delegation "is not necessary," for "[t]he
exclusive power at the Seat of Government will reach the object."
The proposal was defeated by only two votes. 2 Farrand, Records of
the Federal Convention of 1787 (1911), 616.

															[ Footnote 3/20 ]

															The last formal establishment, that of Massachusetts, was
dissolved in 1833. The process of disestablishment in that and
other States is described in Cobb, The Rise of Religious Liberty in
America (1902), c. X; Sweet, The Story of Religion in America
(1950), c. XIII. The greater relevance of conditions existing at
the time of adoption of the Fourteenth Amendment is suggested in
Note, State Sunday Laws and the Religious Guarantees of the Federal
Constitution, 7 Harv.L.Rev. 729, 739, n. 79 (1960).

															[ Footnote 3/21 ] See Corwin, A Constitution of Powers in a Secular State
(1951), 111-114; Fairman and Morrison, Does the Fourteenth
Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5 (1949);
Meyer, Comment, The Blaine Amendment and the Bill of Rights, 64
Harv.L.Rev. 939 (1951); Howe, Religion and Race in Public
Education, 8 Buffalo L.Rev. 242, 245-247 (1959). Cf. Cooley, Principles of Constitutional Law (2d ed. 1891), 213-214. Compare Professor Freund's comment:

															"Looking back, it is hard to see how the Court could have done
otherwise, how it could have persisted in accepting freedom of
contract as a guaranteed liberty without giving equal status to
freedom of press and speech, assembly, and religious observance.
What does not seem so inevitable is the inclusion within the
Fourteenth Amendment of the concept of nonestablishment of religion
in the sense of forbidding nondiscriminatory aid to religion, where
there is no interference with freedom of religious exercise."

															Freund, The Supreme Court of the United States (1961),
58-59.

															[ Footnote 3/22 ]

															The Blaine Amendment, 4 Cong.Rec. 5580, included also a more
explicit provision that

															"no money raised by taxation in any State for the support of
public schools or derived from any public fund therefor, nor any
public lands devoted thereto, shall ever be under the control of
any religious sect or denomination. . . ."

															The Amendment passed the House but failed to obtain the
requisite two-thirds vote in the Senate. See 4 Cong.Rec.
5595. The prohibition which the Blaine Amendment would have
engrafted onto the American Constitution has been incorporated in
the constitutions of other nations; compare Article 28(1)
of the Constitution of India ("No religious instruction shall be
provided in any educational institution wholly maintained out of
State funds"); Article XX of the Constitution of Japan (". . . the
State and its organs shall refrain from religious education or any
other religious activity"). See 1 Chaudhri, Constitutional
Rights and Limitations (1955), 875, 876.

															[ Footnote 3/23 ]

															Three years after the adoption of the Fourteenth Amendment, Mr.
Justice Bradley wrote a letter expressing his views on a proposed
constitutional amendment designed to acknowledge the dependence of
the Nation upon God, and to recognize the Bible as the foundation
of its laws and the supreme ruler of its conduct:

															"I have never been able to see the necessity or expediency of
the movement for obtaining such an amendment. The Constitution was
evidently framed and adopted by the people of the United States
with the fixed determination to allow absolute religious freedom
and equality, and to avoid all appearance even of a State religion,
or a State endorsement of any particular creed or religious sect. .
. . And after the Constitution in its original form was adopted,
the people made haste to secure an amendment that Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof. This shows the earnest desire of our
Revolutionary fathers that religion should be left to the free and
voluntary action of the people themselves. I do not regard it as
manifesting any hostility to religion, but as showing a fixed
determination to leave the people entirely free on the
subject."

															"And it seems to me that our fathers were wise; that the great
voluntary system of this country is quite as favorable to the
promotion of real religion as the systems of governmental
protection and patronage have been in other countries. And whilst I
do not understand that the association which you represent desire
to invoke any governmental interference, still the amendment sought
is a step in that direction which our fathers (quite as good
Christians as ourselves) thought it wise not to take. In this
country, they thought they had settled one thing at least, that it
is not the province of government to teach theology."

															". . . Religion, as the basis and support of civil government,
must reside not in the written Constitution, but in the people
themselves. And we cannot legislate religion into the people. It
must be infused by gentler and wiser methods."

															Miscellaneous Writings of Joseph P. Bradley (1901), 357-359. For
a later phase of the controversy over such a constitutional
amendment as that which Justice Bradley opposed, see Finlator, Christ in Congress, 4 J. Church and State 205 (1962).

															[ Footnote 3/24 ]

															There is no doubt that, whatever "establishment" may have meant
to the Framers of the First Amendment in 1791, the draftsmen of the
Fourteenth Amendment three quarters of a century later understood
the Establishment Clause to foreclose many incidental forms of
governmental aid to religion which fell far short of the creation
or support of an official church. The Report of a Senate Committee
as early as 1853, for example, contained this view of the
Establishment Clause:

															"If Congress has passed, or should pass, any law which, fairly
construed, has in any degree introduced, or should attempt to
introduce, in favor of any church, or ecclesiastical association,
or system of religious faith, all or any one of these obnoxious
particulars -- endowment at the public expense, peculiar privileges
to its members, or disadvantages or penalties upon those who should
reject its doctrines or belong to other communions -- such law
would be a 'law respecting an establishment of religion,' and,
therefore, in violation of the constitution."

															S.Rep. No. 376, 32d Cong., 2d Sess. 1-2. Compare Thomas M. Cooley's exposition in the year in
which the Fourteenth Amendment was ratified:

															"Those things which are not lawful under any of the American
constitutions may be stated thus:"

															"1. Any law respecting an establishment of religion. . . ."

															"2. Compulsory support, by taxation or otherwise, of religious
instruction. Not only is no one denomination to be favored at the
expense of the rest, but all support of religious instruction must
be entirely voluntary."

															Cooley, Constitutional Limitations (1st ed. 1868), 469.

															[ Footnote 3/25 ] Compare, e.g., Miller, Roger Williams: is Contribution
to the American Tradition (1953), 83, with Madison,
Memorial and Remonstrance Against Religious Assessments, reprinted
as an Appendix to the dissenting opinion of Mr. Justice Rutledge, Everson v. Board of Education, supra at 330 U. S. 63 -72. See also Cahn, On Government and Prayer, 37 N.Y.U.L.Rev.
981, 982-985 (1962); Jefferson's Bill for Establishing Religious
Freedom, in Padover, The Complete Jefferson (1943), 946-947;
Moulton and Myers, Report on Appointing Chaplains to the
Legislature of New York, in Blau, Cornerstones of Religious Freedom
in America (1949), 141-156; Bury, A History of Freedom of Thought
(2d ed.1952), 75-76.

															[ Footnote 3/26 ] See, e.g., Spicer, The Supreme Court and Fundamental
Freedoms (1959), 83-84; Kauper, Church, State, and Freedom: A
Review, 52 Mich.L.Rev. 829, 839 (1954); Reed, Church-State and the Zorach Case, 27 Notre Dame Lawyer 529, 539-541 (1952).

															[ Footnote 3/27 ] See 343 U.S. at 343 U. S.
321 -322 (Frankfurter, J., dissenting); Kurland, Religion
and the Law (1962), 89. I recognize that there is a question
whether, in Zorach, the free exercise claims asserted
were, in fact, proved. 343 U.S. at 343 U. S.
311 .

															[ Footnote 3/28 ]

															Mr. Justice Frankfurter described the effects of the McCollum program thus:

															"Religious education so conducted on school time and property is
patently woven into the working scheme of the school. The Champaign
arrangement thus presents powerful elements of inherent pressure by
the school system in the interest of religious sects. . . . As a
result, the public school system of Champaign actively furthers
inculcation in the religious tenets of some faiths, and in the
process, sharpens the consciousness of religious differences, at
least among some of the children committed to its care."

															333 U.S. at 333 U. S.
227 -228.

															For similar reasons, some state courts have enjoined the public
schools from employing or accepting the services of members of
religious orders even in the teaching of secular subjects, e.g., Zellers v. Huff, 55 N.M. 501, 236 P.2d
949 ; Berghorn v. Reorganized School Dist. No. 8, 364
Mo. 121, 260 S.W.2d
573 ; compare ruling of Texas Commissioner of
Education, Jan. 25, 1961, in 63 American Jewish Yearbook (1962),
188. Over a half century ago, a New York court sustained a school
board's exclusion from the public schools of teachers wearing
religious garb on similar grounds:

															"Then, all through the school hours, these teachers . . . were
before the children as object lessons of the order and church of
which they were members. It is within our common observation that
young children . . . are very susceptible to the influence of their
teachers and of the kind of object lessons continually before them
in schools conducted under these circumstances and with these
surroundings." O'Connor v. Hendrick, 109 App.Div. 361, 371-372, 96
N.Y.Supp. 161, 169. See also Commonwealth v. Herr, 229 Pa.
132, 78 A. 68; Comment, Religious Garb in the Public Schools -- A
Study in Conflicting Liberties, 22 U. of Chi.L.Rev. 888 (1955).
Also apposite are decisions of several courts which have enjoined
the use of parochial schools as part of the public school system, Harfst v. Hoegen, 349 Mo. 808, 163 S.W.2d 609; or have
invalidated programs for the distribution in public school
classrooms of Gideon Bibles, Brown v. Orange County Board of
Public Instruction, 128 So. 2d 181 (Fla.App.); Tudor v.
Board of Education, 14 N.J. 31, 100 A.2d
857 . See Note, The First Amendment and Distribution of
Religious Literature in the Public Schools, 41 Va.L.Rev. 789,
803-806 (1955). In Tudor, the court stressed the role of
the public schools in the Bible program:

															". . . the public school machinery is used to bring about the
distribution of these Bibles to the children. . . . In the eyes of
the pupils and their parents, the board of education has placed its
stamp of approval upon this distribution and, in fact, upon the
Gideon Bible itself. . . . This is more than mere 'accommodation'
of religion permitted in the Zorach case. The school's
part in this distribution is an active one, and cannot be sustained
on the basis of a mere assistance to religion."

															14 N.J. at 51-52, 100 A.2d at 868. The significance of the
teacher's authority was recognized by one early state court
decision:

															"The school being in session, the right to command was vested in
the teacher, and the duty of obedience imposed upon the pupils.
Under such circumstances, a request and a command have the same
meaning. A request from one in authority is understood to be a mere
euphemism. It is, in fact, a command in an inoffensive form." State ex rel. Freeman v. Scheve, 65 Neb. 876, 880, 93
N.W. 169, 170.

															[ Footnote 3/29 ] See, for other illustrations of the principle that,
where First Amendment freedoms are or may be affected, government
must employ those means which will least inhibit the exercise of
constitutional liberties, Lovell v. Griffin, 303 U.
S. 444 ; Schneider v. State, 308 U.
S. 147 , 308 U. S. 161 ; Martin v. Struthers, 319 U. S. 141 ; Saia v. New York, 334 U. S. 558 ; Shelton v. Tucker, 364 U. S. 479 , 364 U. S.
488 -489; Bantam Books, Inc., v. Sullivan, 372 U. S. 58 , 372 U. S. 66 , 372 U. S. 69 -71. See also Note, State Sunday Laws and the Religious
Guarantees of the Federal Constitution, 73 Harv.L.Rev. 729, 743-745
(1960); Freund, The Supreme Court of the United States (1961),
86-87; 74 Harv.L.Rev. 613 (1961). And compare Miller v.
Cooper, 56 N.M. 355, 244 P.2d 520 (1952), in which a state court permitted the holding of public
school commencement exercises in a church building only because no
public buildings in the community were adequate to accommodate the
ceremony.

															[ Footnote 3/30 ]

															No question has been raised in these cases concerning the
standing of these parents to challenge the religious practices
conducted in the schools which their children presently attend.
Whatever authority Doremus v. Board of Education, 342 U. S. 429 ,
might have on the question of the standing of one not the parent of
children affected by the challenged exercises is not before us in
these cases. Neither in McCollum nor in Zorach was there any reason to question the standing of the parent
plaintiffs under settled principles of justiciability and
jurisdiction, whether or not their complaints alleged pecuniary
loss or monetary injury. The free exercise claims of the parents
alleged injury sufficient to give them standing. If, however, the
gravamen of the lawsuit were exclusively one of establishment, it
might seem illogical to confer standing upon a parent who -- though
he is concededly in the best position to assert a free exercise
claim -- suffers no financial injury, by reason of being a parent,
different from that of the ordinary taxpayer, whose standing may be
open to question. See Sutherland, Establishment According
to Engel, 76 Harv.L.Rev. 25, 41-43 (1962). I would suggest
several answers to this conceptual difficulty. First, the parent is
surely the person most directly and immediately concerned about and
affected by the challenged establishment, and to deny him standing
either in his own right or on behalf of his child might effectively
foreclose judicial inquiry into serious breaches of the
prohibitions of the First Amendment -- even though no special
monetary injury could be shown. See Schempp v. School District
of Abington Township, 177 F.
Supp. 398 , 407; Kurland, The Regents' Prayer Case: "Full of
Sound and Fury, Signifying . . . ," 1962 Supreme Court Review 1,
22. Second, the complaint in every case thus far challenging an
establishment has set forth at least a colorable claim of
infringement of free exercise. When the complaint includes both
claims, and neither is frivolous, it would surely be overtechnical
to say that a parent who does not detail the monetary cost of the
exercises to him may ask the court to pass only upon the free
exercise claim, however logically the two may be related. Cf.
Pierce v. Society of Sisters, supra; Truax v. Raich, 239 U. S. 33 , 239 U. S. 38 -39; NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449 458-460; Bell v. Hood, 327 U.
S. 678 ; Bantam Books, Inc., v. Sullivan, 372 U. S. 58 , 372 U. S. 64 , n.
6. Finally, the concept of standing is a necessarily flexible one,
designed principally to ensure that the plaintiffs have

															"such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions. . . ." Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 .
It seems to me that even a cursory examination of the complaints in
these two cases and the opinions below discloses that these parents
have very real grievances against the respective school authorities
which cannot be resolved short of constitutional adjudication. See generally Arthur Garfield Hays Civil Liberties
Conference: Public Aid to Parochial Schools and Standing to Bring
Suit, 12 Buffalo L.Rev. 35 (1962); Jaffe, Standing to Secure
Judicial Review: Public Actions, 74 Harv.L.Rev. 1265 (1961);
Sutherland, Due Process and Disestablishment, 62 Harv.L.Rev. 1306,
1327-1332 (1949); Comment, The Supreme Court, the First Amendment,
and Religion in the Public Schools, 63 Col.L.Rev. 73, 94, n. 153
(1963).

															[ Footnote 3/31 ]

															Quoted in Dunn, What Happened to Religious Education? (1958),
21.

															[ Footnote 3/32 ]

															Quoted id. at 22

															[ Footnote 3/33 ]

															Quoted in Hartford, Moral Values in Public Education: Lessons
From the Kentucky Experience (1958), 31.

															[ Footnote 3/34 ] See Culver, Horace Mann and Religion in the
Massachusetts Public Schools (1929), for an account of one
prominent educator's efforts to satisfy both the protests of those
who opposed continuation of sectarian lessons and exercises in
public schools, and the demands of those who insisted upon the
retention of some essentially religious practices. Mann's continued
use of the Bible for what he regarded as nonsectarian exercises
represented his response to these cross-pressures. See Mann, Religious Education, in Blau, Cornerstones of Religious
Freedom in America (1949), 163-201 (from the Twelfth Annual Report
for 1848 of the Secretary of the Board of Education of
Massachusetts). See also Boles, The Bible, Religion, and
the Public Schools (1961), 22-27.

															[ Footnote 3/35 ] See 2 Stokes, Church and State in the United States
(1950), 572-579; Greene, Religion and the State: The Making and
Testing of an American Tradition (1941), 122-126.

															[ Footnote 3/36 ] E.g., Ala.Code, Tit. 52, § 542; Del.Code Ann., Tit. 14,
§§ 4101-4102; Fla.Stat.Ann. § 231.09(2); Mass.Ann.Laws, c. 71, §
31; Tenn.Code Ann. § 49-1307(4). Some statutes, like the recently
amended Pennsylvania statute involved in Schempp, provide
for the excusal or exemption of children whose parents do not wish
them to participate. See generally Johnson and Yost,
Separation of Church and State in the United States (1948), 33-36;
Thayer, The Role of the School in American Society (1960), 374-375;
Beth, The American Theory of Church and State (1958), 106-107. Compare with the American statutory approach Article 28(3)
of the Constitution of India:

															"(3) No person attending any educational institution recognised
by the State or receiving aid out of State funds shall be required
to take part in any religious instruction that may be imparted in
such institution or to attend any religious worship that may be
conducted in such institution or in any premises attached thereto
unless such person or, if such person is a minor, his guardian has
given his consent thereto." See 1 Chaudhri, Constitutional Rights and Limitations
(1955), 876, 939.

															[ Footnote 3/37 ] See 374
U.S. 203 fn3/34|>note 34, supra. [ Footnote 3/38 ]

															Quoted from New Hampshire School Reports, 1850, 31-32, in
Kinney, Church and State: The Struggle for Separation in New
Hampshire, 1630-1900 (1955), 157-158.

															[ Footnote 3/39 ]

															Quoted in Boyer, Religious Education of Public School Pupils in
Wisconsin, 1953 Wis.L.Rev. 181, 186.

															[ Footnote 3/40 ]

															Quoted in Dunn, What Happened to Religious Education? (195),
271.

															[ Footnote 3/41 ]

															Quoted in Butts, The American Tradition in Religion and
Education (1950), 135-136.

															[ Footnote 3/42 ] See Board of Education v. Minor, 23 Ohio St. 211;
Blakely, American State Papers and Related Documents on Freedom in
Religion (4th rev. ed.1949), 864.

															[ Footnote 3/43 ]

															Report of the United States Commissioner of Education for the
Year 1888-1889, part I, H.R.Exec.Doc. No. 1, part 5, 51st Cong.,
1st Sess. 627.

															[ Footnote 3/44 ]

															Quoted in Illinois ex rel. McCollum v. Board of Education,
supra at 333 U. S. 218 (opinion of Frankfurter, J.). See also President Grant's
Annual Message to Congress, Dec. 7, 1875, 4 Cong.Rec. 175 et
seq., which apparently inspired the drafting and submission of
the Blaine Amendment. See Meyer, Comment, The Blaine
Amendment and the Bill of Rights, 64 Harv.L.Rev. 939 (1951).

															[ Footnote 3/45 ]

															Theodore Roosevelt to Michael A. Schaap, Feb. 22, 1915, 8
Letters of Theodore Roosevelt (Morison ed.1954), 893.

															[ Footnote 3/46 ]

															Quoted in Boles, The Bible, Religion, and the Public Schools
(1961), 238.

															[ Footnote 3/47 ] E.g., 1955 op. Ariz. Atty.Gen. 67; 26 Ore.Op.Atty.Gen.
46 (1952); 25 Cal.Op.Atty.Gen. 316 (1955); 1948-1950 Nev. Atty.Gen.
Rep. 69 (1948). For a 1961 opinion of the Attorney General of
Michigan to the same effect, see 63 American Jewish
Yearbook (1962) 189. In addition to the Governor of Ohio, see 374
U.S. 203 fn3/46|>note 46, supra, a Governor of
Arizona vetoed a proposed law which would have permitted "reading
the Bible, without comment, except to teach Historical or Literary
facts." See 2 Stokes, Church and State in the United
States (1950), 568.

															[ Footnote 3/48 ] See Johnson and Yost, Separation of Church and State in
the United States (1948), 71; Note, Bible Reading in Public
Schools, 9 Vand.L.Rev. 849, 851 (1956).

															[ Footnote 3/49 ] E.g., Spiller v. Inhabitants of Woburn, 12 Allen
(Mass.) 127 (1866); Donahoe v. Richards, 38 Maine 376, 413
(1854); cf. Ferriter v. Tyler, 48 Vt. 444, 471-472
(1876).

															[ Footnote 3/50 ] Board of Education v. Minor, 23 Ohio St. 211
(1873).

															[ Footnote 3/51 ] People ex rel. Ring v. Board of Education, 245 Ill.
334, 92 N.E. 251 (1910); Herold v. Parish Board of School
Directors, 136 La. 1034, 68 So. 116 (1915); State ex rel.
Weiss v. District Board, 76 Wis. 177, 44 N.W. 967 (1890); State ex rel. Finger v. Weedman, 55 S.D. 343, 226 N.W. 348
(1929); State ex rel. Dearle v. Frazier, 102 Wash. 369,
173 P. 35 (1918); cf. State ex rel. Clithero v. Showalter, 159 Wash. 519, 293 P. 1000 (1930); State ex rel. Freeman v.
Scheve, 65 Neb. 853, 91 N.W. 846 (1902), modified, 65
Neb. 876, 93 N.W. 169 (1903). The cases are discussed in Boles, The
Bible, Religion, and the Public Schools (1961), c. IV; Harrison,
The Bible, the Constitution and Public Education, 29 Tenn.L.Rev.
363, 386-389 (1962).

															[ Footnote 3/52 ] Moore v. Monroe, 64 Iowa 367, 20 N.W. 475 (1884); Hackett v. Brooksville Graded School District, 120 Ky.
608, 87 S.W. 792 (1905); Billard v. Board of Education, 69
Kan. 53, 76 P. 422 (1904); Pfeiffer v. Board of Education, 118 Mich. 560, 77 N.W. 250 (1898); Kaplan v. School
District, 171 Minn. 142, 214 N.W. 18 (1927); Lewis v.
Board of Education, 157 Misc. 520, 285 N.Y. Supp. 164
(Sup.Ct.1935), modified on other grounds, 247 App.Div.
106, 286 N.Y. Supp. 174 (1936), appeal dismissed, 276 N.Y.
490, 12 N.E.2d 172 (1937); Doremus v. Board of Education, 5 N.J. 435, 75 A.2d
880 (1950), appeal dismissed, 342 U.
S. 429 ; Church v. Bullock, 104 Tex. 1, 109 S.W.
115 (1908); People ex rel. Vollmar v. Stanley, 81 Colo.
276, 255 P. 610 (1927); Wilkerson v. City of Rome, 152 Ga.
762, 110 S.E. 895 (1922); Carden v. Bland, 199 Tenn. 665, 288
S.W.2d 718 (1956); Chamberlin v. Dade County Board of
Public Instruction, 143 So. 2d
21 (Fla.1962).

															[ Footnote 3/53 ]

															For discussion of the constitutional and statutory provisions
involved in the state cases which sustained devotional exercises in
the public schools, see Boles, The Bible, Religion, and
the Public Schools (1961), c. III; Harrison, The Bible, the
Constitution and Public Education, 29 Tenn.L.Rev. 363, 381-385
(1962); Fellman, Separation of Church and State in the United
States: A Summary View, 1950 Wis.L.Rev. 427, 45452; Note, Bible
Reading in Public Schools, 9 Vand.L.Rev. 849, 854-859 (1956); Note,
Nineteenth Century Judicial Thought Concerning Church-State
Relations, 40 Minn.L.Rev. 672, 675-678 (1956). State courts appear
to have been increasingly influenced in sustaining devotional
practices by the availability of an excuse or exemption for
dissenting students. See Cushman, The Holy Bible and the
Public Schools, 40 Cornell L.Q. 475, 477 (1955); 13 Vand.L.Rev. 552
(1960).

															[ Footnote 3/54 ] See Rosenfield, Separation of Church and State in the
Public Schools, 22 U. of Pitt.L.Rev. 561, 571-572 (1961); Harrison,
The Bible the Constitution and Public Education, 29 Tenn.L.Rev. 363
399-400 (1962); 30 Ford.L.Rev. 801, 803 (1962); 45 Va.L.Rev. 1381
(1959). The essentially religious character of the materials used
in these exercises is, in fact, strongly suggested by the presence
of excusal or exemption provisions, and by the practice of rotating
or alternating the use of different prayers and versions of the
Holy Bible

															[ Footnote 3/55 ]

															In the Billard case, the teacher whose use of the
Lord's Prayer and the Twenty-third Psalm was before the court
testified that the exercise served disciplinary, rather than
spiritual, purposes:

															"It is necessary to have some general exercise after the
children come in from the playground to prepare them for their
work. You need some general exercise to quiet them down."

															When asked again if the purpose were not at least partially
religious, the teacher replied, "[i]t was religious to the children
that are religious, and to the others it was not." 69 Kan. at
57-58, 76 P. at 423.

															[ Footnote 3/56 ] See, e.g., Henry, The Place of Religion in Public
Schools (1950); Martin, Our Public Schools -- Christian or Secular
(1952); Educational Policies Comm'n of the National Educational
Assn., Moral and Spiritual Values in the Public Schools (1951), c.
IV; Harner, Religion's Place in General Education (1949). Educators
are by no means unanimous, however, on this question. See Boles, The Bible, Religion, and the Public Schools (1961), 223-224. Compare George Washington's advice in his Farewell
Address:

															"And let us with caution indulge the supposition that morality
can be maintained without religion. Whatever may be conceded to the
influence of refined education on minds of peculiar structure,
reason and experience both forbid us to expect that National
morality can prevail in exclusion of religious principle."

															35 Writings of George Washington (Fitzpatrick ed.1940), 229.

															[ Footnote 3/57 ]

															Thomas Jefferson's insistence that, where the judgments of young
children

															"are not sufficiently matured for religious inquiries, their
memories may here be stored with the most useful facts from
Grecian, Roman, European and American history,"

															2 Writings of Thomas Jefferson (Memorial ed.1903), 204, is
relevant here. Recent proposals have explored the possibility of
commencing the school day "with a quiet moment that would still the
tumult of the playground and start a day of study," Editorial,
Washington Post, June 28, 1962, § A, p. 22, col. 2. See
also New York Times, Aug. 30, 1962, § 1, p. 18, col. 2. For a
consideration of these and other alternative proposals see Choper, Religion in the Public Schools: A Proposed Constitutional
Standard, 47 Minn.L.Rev. 329, 370-371 (1963). See also 2
Stokes, Church and State in the United States (1950), 571.

															[ Footnote 3/58 ]

															The history, as it bears particularly upon the role of sectarian
differences concerning Biblical texts and interpretation, has been
summarized in Tudor v. Board of Education, 14 N.J. 31,
36-44, 100
A.2d 857 , 859-864. See also State ex rel. Weiss v. District
Board, 76 Wis. 177, 190-193, 44 N.W. 967, 972-975. One state
court adverted to these differences a half century ago:

															"The Bible, in its entirety, is a sectarian book as to the Jew
and every believer in any religion other than the Christian
religion, and, as to those who are heretical or who hold beliefs
that are not regarded as orthodox . . . , its use in the schools
necessarily results in sectarian instruction. There are many sects
of Christians, and their differences grow out of their differing
constructions of various parts of the Scriptures -- the different
conclusions drawn as to the effect of the same words. The portions
of Scripture which form the basis of these sectarian differences
cannot be thoughtfully and intelligently read without impressing
the reader, favorably or otherwise, with reference to the doctrines
supposed to be derived from them." People ex rel. Ring v. Board of Education, 245 Ill.
334, 347-348, 92 N.E. 251, 255. But see, for a sharply
critical comment, Schofield, Religious Liberty and Bible Reading in
Illinois Public Schools, 6 Ill.L.Rev. 17 (1911), See also Dunn, What Happened to Religious Education? (1958), 268-273;
Dawson, America's Way in Church, State, and Society (1953), 53-54;
Johnson and Yost, Separation of Church and State in the United
States (1948), c. IV; Harpster, Religion, Education and the Law, 36
Marquette L.Rev. 24, 445 (1952); 20 Ohio State L.J. 701, 702-703
(1959).

															[ Footnote 3/59 ] See Torcaso v. Watkins, supra, at 367 U. S. 495 ,
n. 11; Cushman, The Holy Bible and the Public Schools, 40 Cornell
L.Q. 475, 480-483 (1955); Note, Separation of Church and State:
Religious Exercises in the Schools, 31 U. of Cinc.L.Rev. 408, 41112
(1962). Few religious persons today would share the universality of
the Biblical canons of John Quincy Adams:

															"You ask me what Bible I take as the standard of my
faith -- the Hebrew, the Samaritan, the old English translation, or
what? I answer, the Bible containing the sermon upon the mount --
any Bible that I can read and understand. . . . I take any one of
them for my standard of faith. If Socinus or Priestley had made a
fair translation of the Bible, I would have taken that,
but without their comments."

															John Quincy Adams to John Adams, Jan. 3, 1817, in Koch and
Peden, Selected Writings of John and John Quincy Adams (1946),
292.

															[ Footnote 3/60 ]

															Rabbi Solomon Grayzel testified before the District Court,

															"In Judaism, the Bible is not read, it is studied. There is no
special virtue attached to a mere reading of the Bible; there is a
great deal of virtue attached to a study of the Bible."

															" See Boles, The Bible, Religion, and the Public Schools
(1961), 208-218; Choper, Religion in the Public Schools: A Proposed
Constitutional Standard, 47 Minn.L.Rev. 39, 372-375 (1963). One
religious periodical has suggested the danger that"

															"an observance of this sort is likely to deteriorate quickly
into an empty formality with little, if any, spiritual
significance. Prescribed forms of this sort, as many colleges have
concluded after years of compulsory chapel attendance, can actually
work against the inculcation of vital religion."

															Prayers in Public Schools Opposed, 69 Christian Century, Jan. 9,
1952, p. 35.

															[ Footnote 3/61 ] See Cahn, On Government and Prayer, 37 N.Y.U.L.Rev.
981, 993-994 (1962). A leading Protestant journal recently
noted:

															"Agitation for removal of religious practices in public schools
is not prompted or supported entirely by Jews, humanists, and
atheists. At both local and national levels, many Christian
leaders, concerned both for civil rights of minorities and for
adequate religious education, are opposed to religious exercises in
public schools. . . . Many persons, both Jews and Christians,
believe that prayer and Bible reading are too sacred to be
permitted in public schools, in spite of their possible moral
value."

															Smith, The Religious Crisis In Our Schools, 128 The
Episcopalian, May 1963, pp. 12-13. See, e.g., for other
recent statements on this question, Editorial, Amending the
Amendment, 108 America, May 25, 1963, p. 736; Sissel, A Christian
View: Behind the Fight Against School Prayer, 27 Look, June 18,
1963, p.25. It should be unnecessary to demonstrate that the Lord's
Prayer, more clearly than the Regents' Prayer involved in Engel
v. Vitale, is an essentially Christian supplication. See,
e.g., Scott, The Lord's Prayer: Its Character, Purpose, and
Interpretation (1951), 55; Buttrick, So We Believe, So We Pray
(1951), 142; Levy, Lord's Prayer, in 7 Universal Jewish
Encyclopedia (1948), 19-193.

															[ Footnote 3/62 ]

															Statement of the Baptist Joint Committee on Public Affairs, in 4
J. Church and State 144 (1962).

															[ Footnote 3/63 ] See Harrison, The Bible, the Constitution and Public
Education, 29 Tenn.L.Rev. 363, 397 (1962). The application of
statutes and regulations which forbid comment on scriptural
passages is further complicated by the view of certain religious
groups that reading without comment is either meaningless or
actually offensive. Compare Rabbi Grayzel's testimony
before the District Court that "the Bible is misunderstood when it
is taken without explanation." A recent survey of the attitudes of
certain teachers disclosed concern that "refusal to answer pupil
questions regarding any curricular activity is not educationally
sound," and that reading without comment might create in the minds
of the pupils the impression that something was "hidden or wrong."
Boles, The Bible, Religion, and the Public Schools (1961), 235-236. Compare the comment of a foreign observer:

															"In no other field of learning would we expect a child to draw
the full meaning from what he reads without accompanying
explanatory comment. But comment by the teacher will inevitably
reveal his own personal preferences, and the exhibition of
preferences is what we are seeking to eliminate."

															MacKinnon, Freedom? -- or Toleration? The Problem of Church and
State in the United States, [1959] Pub.Law 374, 383.

															[ Footnote 3/64 ] See Abbott, A Common Bible Reader for Public Schools,
56 Religious Education 20 (1961); Note, 22 Albany L.Rev. 156-157
(1958); 2 Stokes, Church and State in the United States (1950),
501-506 (describing the "common denominator" or "three faiths" plan
and certain programs of instruction designed to implement the
"common core" approach). The attempts to evolve a universal,
nondenominational prayer are by no means novel. See, e.g., Madison's letter to Edward Everett, March 19, 1823, commenting upon
a

															"project of a prayer . . . intended to comprehend &
conciliate College Students of every [Christian] denomination, by a
Form composed wholly of texts & phrases of scripture."

															9 Writings of James Madison (Hunt ed.1910), 126. For a fuller
description of this and other attempts to fashion a "common core"
or nonsectarian exercise, see Engel v. Vitale, 18 Misc.2d
659, 660-662, 191 N.Y.S.2d 453, 459-460.

															[ Footnote 3/65 ] See the policy statement recently drafted by the
National Council of the Churches of Christ:

															". . . neither true religion nor good education is dependent
upon the devotional use of the Bible in the public school program.
. . . Apart from the constitutional questions involved, attempts to
establish a 'common core' of religious beliefs to be taught in
public schools for the purpose of indoctrination are unrealistic
and unwise. Major faith groups have not agreed on a formulation of
religious beliefs common to all. Even if they had done so, such a
body of religious doctrine would tend to become a substitute for
the more demanding commitments of historic faiths."

															Washington Post, May 25, 1963, § A, p. 1, col. 4. See
also Choper, Religion in the Public Schools: A Proposed
Constitutional Standard, 47 Minn.L.Rev. 329, 341, 368-369 (1963). See also Hartford, Moral Values in Public Education:
Lessons from the Kentucky Experience (1958), 261-262; Moehlman, The
Wall of Separation Between Church and State (1951), 158-159. Cf. Mosk, "Establishment Clause" Clarified, 22 Law in
Transition 231, 235-236 (1963).

															[ Footnote 3/66 ]

															Quoted in Kurland, The Regents' Prayer Case: "Full of Sound and
Fury, Signifying . . . ,"1962 Supreme Court Review (1962), 1,
31.

															[ Footnote 3/67 ]

															Quoted in Harrison, The Bible, the Constitution and Public
Education, 29 Tenn.L.Rev. 363, 417 (1962). See also Dawson, America's Way in Church, State, and Society (1953), 54.

															[ Footnote 3/68 ] See the testimony of Edward L. Schempp, the father of
the children in the Abington schools and plaintiff appellee in No.
142, concerning his reasons for not asking that his children be
excused from the morning exercises after excusal was made available
through amendment of the statute:

															"We originally objected to our children being exposed to the
reading of the King James version of the Bible . . . , and under
those conditions, we would have theoretically liked to have had the
children excused. But we felt that the penalty of having our
children labelled as 'odd balls' before their teachers and
classmates every day in the year was even less satisfactory than
the other problem. . . ."

															"The children, the classmates of Roger and Donna are very liable
to label and lump all particular religious difference or religious
objections as atheism, particularly, today the word 'atheism' is so
often tied to atheistic communism, and atheism has very bad
connotations in the minds of children and many adults today."

															A recent opinion of the Attorney General of California gave as
one reason for finding devotional exercises unconstitutional the
likelihood that

															"[c]hildren forced by conscience to leave the room during such
exercises would be placed in a position inferior to that of
students adhering to the State-endorsed religion."

															25 Cal.Op.Atty.Gen. 316, 319 (1955). Other views on this
question, and possible effects of the excusal procedure, are
summarized in Rosenfield, Separation of Church and State in the
Public Schools, 22 U. of Pitt.L.Rev. 561, 581-585 (1961); Note,
Separation of Church and State: Religious Exercises in the Schools,
31 U. of Cinc.L.Rev. 408, 416 (1962); Note, 62 W.Va.L.Rev. 353, 358
(1960).

															[ Footnote 3/69 ]

															Extensive testimony by behavioral scientists concerning the
effect of similar practices upon children's attitudes and behaviors
is discussed in Tudor v. Board of Education, 14 N.J. 31,
50-52, 100
A.2d 857 , 867-868. See also Choper, Religion in the
Public Schools: A Proposed Constitutional Standard, 47 Minn.L.Rev.
329, 344 (1963). There appear to be no reported experiments which
bear directly upon the question under consideration. There have,
however, been numerous experiments which indicate the
susceptibility of school children to peer group pressures,
especially where important group norms and values are involved. See, e.g., Berenda, The Influence of the Group on the
Judgments of Children (1950), 26-33; Argyle, Social Pressure in
Public and Private Situations, 54 J. Abnormal & Social Psych.
172 (1957); cf. Rhine, The Effect of Peer Group Influence
Upon Concept-Attitude Development and Change, 51 J. Social Psych.
173 (1960); French, Morrison and Levinger, Coercive Power and
Forces Affecting Conformity, 61 J. Abnormal and Social Psych. 93
(1960). For a recent and important experimental study of the
susceptibility of students to various factors in the school
environment, see Zander, Curtis and Rosenfeld, The
Influence of Teachers and Peers on Aspirations of Youth (U.S.
Office of Education Cooperative Research Project No. 451, 1961),
24-25, 78-79. It is also apparent that the susceptibility of school
children to prestige suggestion and social influence within the
school environment varies inversely with the age, grade level, and
consequent degree of sophistication of the child, see Pated and Gordon, Some Personal and Situational Determinants of
Yielding to Influence, 61 J. Abnormal and Social Psych. 411, 417
(1960).

															Experimental findings also shed some light upon the probable
effectiveness of a provision for excusal when, as is usually the
case, the percentage of the class wishing not to participate in the
exercises is very small. It has been demonstrated, for example,
that the inclination even of adults to depart or dissent overtly
from strong group norms varies proportionately with the size of the
dissenting group -- that is, inversely with the apparent or
perceived strength of the norm itself -- and is markedly slighter
in the case of the sole or isolated dissenter. See, e.g., Asch, Studies of Independence and Conformity: I. A Minority of One
Against a Unanimous Majority (Psych. Monographs No. 416, 1956),
69-70; Asch, Effects of Group Pressure upon the Modification and
Distortion of Judgments, in Cartwright and Zander, Group Dynamics
(2d ed.1960), 189-199; Luchins and Luchins, On Conformity With True
and False Communications, 42 J. Social Psych. 283 (1955). Recent
important findings on these questions are summarized in Hare,
Handbook of Small Group Research (1962), c. II.

															[ Footnote 3/70 ] See, on the general problem of conflict and
accommodation between the two clauses, Katz, Freedom of Religion
and State Neutrality, 20 U. of Chi.L.Rev. 426, 429 (1953);
Griswold, Absolute Is In the Dark, 8 Utah L.Rev. 167, 176-179
(1963); Kauper, Church, State, and Freedom: A Review, 52
Mich.L.Rev. 829, 833 (1954). One author has suggested that the
Establishment and Free Exercise Clauses must be

															"read as stating a single precept: that government cannot
utilize religion as a standard for action or inaction because these
clauses, read together as they should be, prohibit classification
in terms of religion either to confer a benefit or to impose a
burden."

															Kurland, Religion and the Law (1962), 112. Compare the
formula of accommodation embodied in the Australian Constitution, §
116:

															"The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and no religious
test shall be required as a qualification for any office or public
trust under the Commonwealth."

															Essays on the Australian Constitution (Else-Mitchell ed.1961),
15.

															[ Footnote 3/71 ]

															There has been much difference of opinion throughout American
history concerning the advisability of furnishing chaplains at
government expense. Compare, e.g., Washington's order
regarding chaplains for the Continental Army, July 9, 1776, in 5
Writings of George Washington (Fitzpatrick ed.1932), 244, with Madison's views on a very similar question, letter to
Eduard Livingston, July 10, 1822, 9 Writings of James Madison (Hunt
ed.1910), 100-103. Compare also this statement by the
Armed Forces Chaplains Board concerning the chaplain's
obligation:

															"To us has been entrusted the spiritual and moral guidance of
the young men and women in the Armed Services of this country. A
chaplain has many duties -- yet first and foremost is that of
presenting God to men and women wearing the military uniform. What
happens to them while they are in military service has a profound
effect on what happens in the community as they resume civilian
life. We, as chaplains, must take full cognizance of that fact and
dedicate our work to making them finer, spiritually strengthened
citizens."

															Builders of Faith (U.S. Department of Defense 1955), ii. It is
interesting to compare in this regard an express provision, Article
140, of the Weimar Constitution: "Necessary free time shall be
accorded to the members of the armed forces for the fulfillment of
their religious duties." McBain and Rogers, The New Constitutions
of Europe (1922), 203.

															[ Footnote 3/72 ]

															For a discussion of some recent and difficult problems in
connection with chaplains and religious exercises in prisons, see, e.g., Pierce v. La Vallee, 293 F.2d 233; In re
Ferguson, 55 Cal. 2d
663 , 361 P.2d 417; McBride v. McCorkle, 44 N.J.Super.
468, 130 A.2d 881 ; Brown v. McGinnis, 10 N.Y.2d 531, 180
N.E.2d 791; discussed in Comment, 62 Col.L.Rev. 1488 (1962); 75
Harv.L.Rev. 837 (1962). Compare Article XVIII of the Hague
Convention Regulations of 1899:

															"Prisoners of war shall enjoy every latitude in the exercise of
their religion, including attendance at their own church services,
provided only they comply with the regulations for order and police
issued by the military authorities."

															Quoted in Blakely, American State Papers and Related Documents
on Freedom in Religion (4th rev. ed.1949), 313.

															[ Footnote 3/73 ] Compare generally Sibley and Jacob, Conscription of
Conscience: The American State and the Conscientious Objector,
1940-1947 (1952), with Conklin, Conscientious Objector
Provisions: A View in the Light of Torcaso v. Watkins, 51
Geo.L.J. 252 (1963).

															[ Footnote 3/74 ] See, e.g., Southside Estates Baptist Church v. Board of
Trustees, 115 So. 2d
697 (Fla.); Lewis v. Mandeville, 201 Misc. 120, 107
N.Y.S.2d 865; cf. School District No. 97 v. Schmidt, 128
Colo. 495, 263 P.2d 581 (temporary loan of school district's custodian to church). A
different problem may be presented with respect to the regular use
of public school property for religious activities, State ex
rel. Gilbert v. Dilley, 95 Neb. 527, 145 N.W. 999; the
erection on public property of a statue of or memorial to an
essentially religious figure, State ex rel. Singelmann v.
Morrison, 57 So. 2d 238 (La.App.); seasonal displays of a
religious character, Baer v. Kolmorgen, 14 Misc.2d 1015,
181 N.Y.S.2d 230; or the performance on public property of a drama
or opera based on religious material or carrying a religious
message, cf. County of Los Angeles v.
Hollinger, 200 Cal. App.
2d 877 , 19 Cal. Rptr. 648.

															[ Footnote 3/75 ] Compare Moulton and Myers, Report on Appointing
Chaplains to the Legislature of New York, in Blau, Cornerstones of
Religious Freedom in America (1949), 141-156; Comment, 63
Col.L.Rev. 73, 97 (1963)

															[ Footnote 3/76 ]

															A comprehensive survey of the problems raised concerning the
role of religion in the secular curriculum is contained in Brown,
ed., The Study of Religion in the Public Schools: An Appraisal
(1958). See also Katz, Religion and American
Constitutions, Lecture at Northwestern University Law School, March
21, 1963, pp. 37-41; Educational Policies Comm'n of the National
Education Assn., Moral and Spiritual Values in the Public Schools
(1951), 49-80. Compare, for a consideration of similar
problems in state supported colleges and universities, Louisell and
Jackson, Religion, Theology, and Public Higher Education, 50
Cal.L.Rev. 751 (1962).

															[ Footnote 3/77 ] See generally Torpey, Judicial Doctrines of Religious
Rights in America (1948), c. VI; Van Alstyne, Tax Exemption of
Church Property, 20 Ohio State L.J. 461 (1959); Sutherland, Due
Process and Disestablishment, 62 Harv.L.Rev. 1306, 1336-1338
(1949); Louisell and Jackson, Religion, Theology, and Public Higher
Education, 50 Cal.L.Rev. 751, 773-780 (1962); 7 De Paul L.Rev. 206
(1958); 58 Col.L.Rev. 417 (1958); 9 Stan.L.Rev. 366 (1957).

															[ Footnote 3/78 ] See, e.g., Washington Ethical Society v. District of
Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127; Fellowship
of Humanity v. County of Alameda, 153 Cal.
App. 2d 673 , 315 P.2d 394.

															MR. JUSTICE GOLDBERG, with whom MR. JUSTICE HARLAN joins,
concurring.

															As is apparent from the opinions filed today, delineation of the
constitutionally permissible relationship between religion and
government is a most difficult and sensitive task, calling for the
careful exercise of both judicial and public judgment and
restraint. The considerations which lead the Court today to
interdict the clearly religious practices presented in these cases
are to me wholly compelling; 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 First Amendment's guarantees, as applied to the States
through the Fourteenth Amendment, foreclose not only laws
"respecting an establishment of religion", but also those
"prohibiting the free exercise thereof." These two proscriptions
are to be read together, and in light of the single end which they
are designed to serve. The basic purpose of the religion clause of
the First Amendment is to promote and assure the fullest possible
scope of religious liberty and tolerance for all, and to nurture
the conditions which secure the best hope of attainment of that
end.

															The fullest realization of true religious liberty requires that
government neither engage in nor compel religious practices, that
it effect no favoritism among sects or between religion and
nonreligion, and that it work deterrence of no religious belief.
But devotion even to these simply stated objectives presents no
easy course, for the unavoidable accommodations necessary to
achieve the Page 374 U. S. 306 maximum enjoyment of each and all of them are often difficult of
discernment. There is for me no simple and clear measure which by
precise application can readily and invariably demark the
permissible from the impermissible.

															It is said, and I agree, that the attitude of government 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.

															Neither government nor this Court can or should ignore the
significance of the fact that a vast portion of our people believe
in and worship God, and that many of our legal, political and
personal values derive historically from religious teachings.
Government must inevitably take cognizance of the existence of
religion and, indeed, under certain circumstances, the First
Amendment may require that it do so. And it seems clear to me from
the opinions in the present and past cases that the Court would
recognize the propriety of providing military chaplains and of the
teaching about religion, as distinguished from the
teaching of religion, in the public schools. The examples
could readily be multiplied, for both the required and the
permissible accommodations between state and church frame the
relation as one free of hostility or favor and productive of
religious and political harmony, but without undue involvement of
one in the concerns or practices of the other. To be sure, the
judgment in each case is a delicate one, but it must be made if we
are to do loyal service as judges to the ultimate First Amendment
objective of religious liberty. Page 374 U. S. 307 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. The state has ordained and has utilized its
facilities to engage in unmistakably religious exercises -- the
devotional reading and recitation of the Holy Bible -- in a manner
having substantial and significant import and impact. That it has
selected, rather than written, a particular devotional liturgy
seems to me without constitutional import. The pervasive
religiosity and direct governmental involvement inhering in the
prescription of prayer and Bible reading in the public schools,
during and as part of the curricular day, involving young
impressionable children whose school attendance is statutorily
compelled, and utilizing the prestige, power, and influence of
school administration, staff, and authority, cannot realistically
be termed simply accommodation, and must fall within the
interdiction of the First Amendment. I find nothing in the opinion
of the Court which says more than this. And, of course, 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. As the Court declared
only last Term in Engel v. Vitale, 370 U.
S. 421 , 370 U. S. 435 ,
n. 21:

															"There is, of course, nothing in the decision reached here that
is inconsistent with the fact that school children and others are
officially encouraged to express love for our country by reciting
historical documents such as the Declaration of Independence which
contain references to the Deity or by singing officially espoused
anthems which include the composer's professions of faith in a
Supreme Being, or Page 374 U. S. 308 with the fact that there are many manifestations in our public
life of belief in God. Such patriotic or ceremonial occasions bear
no true resemblance to the unquestioned religious exercise that the
State . . . has sponsored in this instance."

															The First Amendment does not prohibit practices which, by any
realistic measure, create none of the dangers which it is designed
to prevent and which do not so directly or substantially involve
the state in religious exercises or in the favoring of religion as
to have meaningful and practical impact. It is, of course, true
that great consequences can grow from small beginnings, but the
measure of constitutional adjudication is the ability and
willingness to distinguish between real threat and mere shadow.

															MR. JUSTICE STEWART, dissenting.

															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 4/1 ] But I think there
exist serious questions under both that provision and the Free
Exercise Clause -- insofar as each is imbedded in the Fourteenth
Amendment -- which require the remand of these cases for the taking
of additional evidence. I The First Amendment declares that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof. . . ." It is, I Page 374 U. S. 309 think, a fallacious oversimplification to regard these two
provisions as establishing a single constitutional standard of
"separation of church and state," which can be mechanically applied
in every case to delineate the required boundaries between
government and religion. We err in the first place if we do not
recognize, as a matter of history and as a matter of the
imperatives of our free society, that religion and government must
necessarily interact in countless ways. Secondly, the fact is that,
while in many contexts the Establishment Clause and the Free
Exercise Clause fully complement each other, there are areas in
which a doctrinaire reading of the Establishment Clause leads to
irreconcilable conflict with the Free Exercise Clause.

															A single obvious example should suffice to make the point.
Spending federal funds to employ chaplains for the armed forces
might be said to violate the Establishment Clause. Yet a lonely
soldier stationed at some faraway outpost could surely complain
that a government which did not provide him the opportunity for
pastoral guidance was affirmatively prohibiting the free exercise
of his religion. And such examples could readily be multiplied. The
short of the matter is simply that the two relevant clauses of the
First Amendment cannot accurately be reflected in a sterile
metaphor which by its very nature may distort, rather than
illumine, the problems involved in a particular case. Cf.
Sherbert v. Verner, post, p. 374 U. S. 398 . II 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 Page 374 U. S. 310 would also be unable to interfere with existing state
establishments. See McGowan v. Maryland, 366 U.
S. 420 , 366 U. S.
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.

															So matters stood until the adoption of the Fourteenth Amendment,
or, more accurately, until this Court's decision in Cantwell v.
Connecticut, in 1940. 310 U. S. 296 . In
that case, the Court said:

															"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws. [ Footnote 4/2 ]"

															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. See Braunfeld v. Brown, 366 U.
S. 599 , 366 U. S. 616 (dissenting opinion). 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. Page 374 U. S. 311 III Since the Cantwell pronouncement in 1940, this Court
has only twice held invalid state laws on the ground that they were
laws "respecting an establishment of religion" in violation of the
Fourteenth Amendment. McCollum v. Board of Education, 333 U. S. 203 ; Engel v. Vitale, 370 U. S. 421 . On
the other hand, the Court has upheld against such a challenge laws
establishing Sunday as a compulsory day of rest, McGowan v.
Maryland, 366 U. S. 420 , and
a law authorizing reimbursement from public funds for the
transportation of parochial school pupils. Everson v. Board of
Education, 330 U. S. 1 .

															Unlike other First Amendment guarantees, there is an inherent
limitation upon the applicability of the Establishment Clause's ban
on state support to religion. That limitation was succinctly put in Everson v. Board of Education, 330 U. S.
1 , 330 U. S. 18 :
"State power is no more to be used so as to handicap religions than
it is to favor them." [ Footnote
4/3 ] And in a later case, this Court recognized that the
limitation was one which was itself compelled by the free exercise
guarantee.

															"To hold that a state cannot, consistently with the First and
Fourteenth Amendments, utilize its public school system to aid any
or all religious faiths or sects in the dissemination of their
doctrines and ideals does not . . . manifest a governmental
hostility to religion or religious teachings. A manifestation of
such hostility would be at war with our national tradition as
embodied in the First Amendment's guaranty of the free Page 374 U. S. 312 exercise of religion." McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S.
211 -212.

															That the central value embodied in the First Amendment -- and,
more particularly, in the guarantee of "liberty" contained in the
Fourteenth -- is the safeguarding of an individual's right to free
exercise of his religion has been consistently recognized. Thus, in
the case of Hamilton v. Regents, 293 U.
S. 245 , 293 U. S. 265 ,
Mr. Justice Cardozo, concurring, assumed that it was

															". . . the religious liberty protected by the First
Amendment against invasion by the nation [which] is protected by
the Fourteenth Amendment against invasion by the states."

															(Emphasis added.) And in Cantwell v. Connecticut,
supra, the purpose of those guarantees was described in the
following terms:

															"On the one hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form of worship.
Freedom of conscience and freedom to adhere to such religious
organization or form of worship as the individual may choose cannot
be restricted by law. On the other hand, it safeguards the free
exercise of the chosen form of religion."

															310 U.S. at 310 U. S.
303 .

															It is this concept of constitutional protection embodied in our
decisions which makes the cases before us such difficult ones for
me. For 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.

															It has become accepted that the decision in Pierce v.
Society of Sisters, 268 U. S. 510 ,
upholding the right of parents to send their children to nonpublic
schools, was ultimately based upon the recognition of the validity
of the free exercise claim involved in that situation. It might be
argued here that parents who wanted their children to be exposed to
religious influences in school could, under Pierce, send
their children to private or parochial Page 374 U. S. 313 schools. But the consideration which renders this contention too
facile to be determinative has already been recognized by the
Court: "Freedom of speech, freedom of the press, freedom of
religion are available to all, not merely to those who can pay
their own way." Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S.
111 .

															It might also be argued that parents who want their children
exposed to religious influences can adequately fulfill that wish
off school property and outside school time. With all its surface
persuasiveness, however, this argument seriously misconceives the
basic constitutional justification for permitting the exercises at
issue in these cases. For a compulsory state educational system so
structures a child's life that, 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.

															What seems to me to be of paramount importance, then, is
recognition of the fact that the claim advanced here in favor of
Bible reading is sufficiently substantial to make simple reference
to the constitutional phrase "establishment of religion" as
inadequate an analysis of the cases before us as the ritualistic
invocation of the nonconstitutional phrase "separation of church
and state." What these cases compel, rather, is an analysis of just
what the "neutrality" is which is required by the interplay of the
Establishment and Free Exercise Clauses of the First Amendment, as
imbedded in the Fourteenth. Page 374 U. S. 314 IV Our decisions make clear that there is no constitutional bar to
the use of government property for religious purposes. On the
contrary, this Court has consistently held that the discriminatory
barring of religious groups from public property is itself a
violation of First and Fourteenth Amendment guarantees. Fowler
v. Rhode Island, 345 U. S. 67 ; Niemotko v. Maryland, 340 U. S. 268 . A
different standard has been applied to public school property,
because of the coercive effect which the use by religious sects of
a compulsory school system would necessarily have upon the children
involved. McCollum v. Board of Education, 333 U.
S. 203 . But insofar as the McCollum decision
rests on the Establishment, rather than the Free Exercise, Clause,
it is clear that its effect is limited to religious instruction --
to government support of proselytizing activities of religious
sects by throwing the weight of secular authority behind the
dissemination of religious tenets. [ Footnote 4/4 ]

															The dangers both to government and to religion inherent in
official support of instruction in the tenets of various religious
sects are absent in the present cases, which involve only a reading
from the Bible unaccompanied by comments which might otherwise
constitute instruction. Indeed, since, from all that appears in
either record, any teacher who does not wish to do so is free not
to participate, [ Footnote 4/5 ] it
cannot even be contended that some Page 374 U. S. 315 infinitesimal part of the salaries paid by the State are made
contingent upon the performance of a religious function.

															In the absence of evidence that the legislature or school board
intended to prohibit local schools from substituting a different
set of readings where parents requested such a change, we should
not assume that the provisions before us -- as actually
administered -- may not be construed simply as authorizing
religious exercises, nor that the designations may not be treated
simply as indications of the promulgating body's view as to the
community's preference. We are under a duty to interpret these
provisions so as to render them constitutional if reasonably
possible. Compare Two Guys v. McGinley, 366 U.
S. 582 , 366 U. S.
592 -595; Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 4 , and
n. 2. In the Schempp case there is evidence which
indicates that variations were, in fact, permitted by the very
school there involved, and that further variations were not
introduced only because of the absence of requests from parents.
And in the Murray case, the Baltimore rule itself contains
a provision permitting another version of the Bible to be
substituted for the King James version.

															If the provisions are not so construed, I think that their
validity under the Establishment Clause would be extremely
doubtful, because of the designation of a particular religious book
and a denominational prayer. But since, even if the provisions are
construed as I believe they must be, I think that the cases before
us must be remanded for further evidence on other issues -- thus
affording the plaintiffs an opportunity to prove that local
variations are not, in fact, permitted -- I shall for the
balance Page 374 U. S. 316 of this dissenting opinion treat the provisions before us as
making the variety and content of the exercises, as well as a
choice as to their implementation, matters which ultimately reflect
the consensus of each local school community. In the absence of
coercion upon those who do not wish to participate -- because they
hold less strong beliefs, other beliefs, or no beliefs at all --
such provisions cannot, in my view, be held to represent the type
of support of religion barred by the Establishment Clause. For the
only support which such rules provide for religion is the
withholding of state hostility -- a simple acknowledgment on the
part of secular authorities that the Constitution does not require
extirpation of all expression of religious belief. V I have said that these provisions authorizing religious
exercises are properly to be regarded as measures making possible
the free exercise of religion. But it is important to stress that,
strictly speaking, what is at issue here is a privilege, rather
than a right. In other words, the question presented is not whether
exercises such as those at issue here are constitutionally
compelled, but rather whether they are constitutionally invalid.
And that issue, in my view, turns on the question of coercion.

															It is clear that the dangers of coercion involved in the holding
of religious exercises in a school room differ qualitatively from
those presented by the use of similar exercises or affirmations in
ceremonies attended by adults. Even as to children, however, the
duty laid upon government in connection with religious exercises in
the public schools is that of refraining from so structuring the
school environment as to put any kind of pressure on a child to
participate in those exercises; it is not that of providing an
atmosphere in which children are kept scrupulously insulated from
any awareness that some of their fellows Page 374 U. S. 317 may want to open the school day with prayer, or of the fact that
there exist in our pluralistic society differences of religious
belief.

															These are not, it must be stressed, cases like Brown v.
Board of Education, 347 U. S. 483 , in
which this Court held that, in the sphere of public education, the
Fourteenth Amendment's guarantee of equal protection of the laws
required that race not be treated as a relevant factor. A
segregated school system is not invalid because its operation is
coercive; it is invalid simply because our Constitution presupposes
that men are created equal, and that, therefore, racial differences
cannot provide a valid basis for governmental action. Accommodation
of religious differences on the part of the State, however, is not
only permitted but required by that same Constitution.

															The governmental neutrality which the First and Fourteenth
Amendments require in the cases before us, in other words, is the
extension of evenhanded treatment to all who believe, doubt, or
disbelieve -- a refusal on the part of the State to weight the
scales of private choice. In these cases, therefore, what is
involved is not state action based on impermissible categories, but
rather an attempt by the State to accommodate those differences
which the existence in our society of a variety of religious
beliefs makes inevitable. The Constitution requires that such
efforts be struck down only if they are proven to entail the use of
the secular authority of government to coerce a preference among
such beliefs.

															It may well be, as has been argued to us, that even the supposed
benefits to be derived from noncoercive religious exercises in
public schools are incommensurate with the administrative problems
which they would create. The choice involved, however, is one for
each local community and its school board, and not for this Court.
For, as I have said, religious exercises are not constitutionally
invalid if they simply reflect differences which exist in the Page 374 U. S. 318 society from which the school draws its pupils. They become
constitutionally invalid only if their administration places the
sanction of secular authority behind one or more particular
religious or irreligious beliefs.

															To be specific, it seems to me clear that certain types of
exercises would present situations in which no possibility of
coercion on the part of secular officials could be claimed to
exist. Thus, if such exercises were held either before or after the
official school day, or if the school schedule were such that
participation were merely one among a number of desirable
alternatives, [ Footnote 4/6 ] it
could hardly be contended that the exercises did anything more than
to provide an opportunity for the voluntary expression of religious
belief. On the other hand, a law which provided for religious
exercises during the school day and which contained no excusal
provision would obviously be unconstitutionally coercive upon those
who did not wish to participate. And even under a law containing an
excusal provision, if the exercises were held during the school
day, and no equally desirable alternative were provided by the
school authorities, the likelihood that children might be under at
least some psychological compulsion to participate would be great.
In a case such as the latter, however, I think we would err if we
assumed such coercion in the absence of any evidence. [ Footnote 4/7 ] Page 374 U. S. 319 VI Viewed in this light, it seems to me clear that the records in
both of the cases before us are wholly inadequate to support an
informed or responsible decision. Both cases involve provisions
which explicitly permit any student who wishes, to be excused from
participation in the exercises. There is no evidence in either case
as to whether there would exist any coercion of any kind upon a
student who did not want to participate. No evidence at all was
adduced in the Murray case, because it was decided upon a
demurrer. All that we have in that case, therefore, is the
conclusory language of a pleading. While such conclusory
allegations are acceptable for procedural purposes, I think that
the nature of the constitutional problem involved here clearly
demands that no decision be made except upon evidence. In the Schempp case, the record shows no more than a subjective
prophecy by a parent of what he thought would happen if a request
were made to be excused from participation in the exercises under
the amended statute. No such request was ever made, and there is no
evidence whatever as to what might or would actually happen, nor of
what administrative arrangements the school actually might or could
make to free from pressure of any kind those who do not want to
participate in the exercises. There were no District Court findings
on this issue, since the case under the amended statute was decided
exclusively on Establishment Clause grounds. 201 F.
Supp. 815 What our Constitution indispensably protects is the freedom of
each of us, be he Jew or Agnostic, Christian or Page 374 U. S. 320 Atheist, Buddhist or Freethinker, to believe or disbelieve, to
worship or not worship, to pray or keep silent, according to his
own conscience, uncoerced and unrestrained by government. It is
conceivable that these school boards, or even all school boards,
might eventually find it impossible to administer a system of
religious exercises during school hours in such a way as to meet
this constitutional standard -- in such a way as completely to free
from any kind of official coercion those who do not affirmatively
want to participate. [ Footnote 4/8 ]
But I think we must not assume that school boards so lack the
qualities of inventiveness and good will as to make impossible the
achievement of that goal.

															I would remand both cases for further hearings.

															[ Footnote 4/1 ]

															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.

															[ Footnote 4/2 ]

															310 U.S. at 310 U. S. 303 .
The Court's statement as to the Establishment Clause in Cantwell was dictum. The case was decided on free exercise
grounds.

															[ Footnote 4/3 ] See also, in this connection, Zorach v.
Clauson, 343 U. S. 306 , 343 U. S.
314 :

															"Government may not finance religious groups nor undertake
religious instruction nor blend secular and sectarian education nor
use secular institutions to force one or some religion on any
person. But we find no constitutional requirement which makes it
necessary for government to be hostile to religion and to throw its
weight against efforts to widen the effective scope of religious
influence."

															[ Footnote 4/4 ]

															"This is, beyond all question, a utilization of the tax
established and tax supported public school system to aid religious
groups to spread their faith. " McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S. 210 .
(Emphasis added.)

															[ Footnote 4/5 ]

															The Pennsylvania statute was specifically amended to remove the
compulsion upon teachers. Act of December 17, 1959, p. L.1928, 24
Purdon's Pa.Stat.Ann. § 15-1516. Since the Maryland case is here on
a demurrer, the issue of whether or not a teacher could be
dismissed for refusal to participate seems, among many others,
never to have been raised.

															[ Footnote 4/6 ] See, e.g., the description of a plan permitting
religious instruction off school property contained in McCollum
v. Board of Education, 333 U. S. 203 , 333 U. S. 224 (separate opinion of Mr. Justice Frankfurter).

															[ Footnote 4/7 ] Cf. "The task of separating the secular from the religious in
education is one of magnitude, intricacy and delicacy. To lay down
a sweeping constitutional doctrine as demanded by complainant and
apparently approved by the Court, applicable alike to all school
boards of the nation, . . . is to decree a uniform, rigid and, if
we are consistent, an unchanging standard for countless school
boards representing and serving highly localized groups which not
only differ from each other but which themselves from time to time
change attitudes. It seems to me that to do so is to allow zeal for
our own ideas of what is good in public instruction to induce us to
accept the role of a super board of education for every school
district in the nation." McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S. 237 (concurring opinion of Mr. Justice Jackson).

															[ Footnote 4/8 ]

															For example, if the record in the Schempp case
contained proof (rather than mere prophecy) that the timing of
morning announcements by the school was such as to handicap
children who did not want to listen to the Bible reading, or that
the excusal provision was so administered as to carry any overtones
of social inferiority, then impermissible coercion would clearly
exist.