U.S. Supreme Court Zorach v. Clauson, 343
U.S. 306 (1952) Zorach v. Clauson No. 431 Argued January 31 February 1, 1952 Decided April 28,
1952 343
U.S. 306 APPEAL FROM THE COURT OF APPEALS OF
NEW YORK Syllabus Under § 3210 of the New York Education Law and the regulations
thereunder, New York City permits its public schools to release
students during school hours, on written requests of their parents,
so that they may leave the school buildings and grounds and go to
religious centers for religious instruction or devotional
exercises. The same section makes school attendance compulsory;
students not released stay in the classrooms, and the churches
report to the schools the names of children released from public
schools who fail to report for religious instruction. The program
involves neither religious instruction in public schools nor the
expenditure of public funds. Held: This program does not violate the First
Amendment, made applicable to the States by the Fourteenth
Amendment. McCollum v. Board of Education, 333 U.
S. 203 , distinguished. Pp. 343 U. S.
308 -315.

															(a) By this system, New York has neither prohibited the "free
exercise" of religion nor made a law "respecting an establishment
of religion" within the meaning of the First Amendment. Pp. 343 U. S.
310 -315.

															(b) There is no evidence in the record in this case to support a
conclusion that the system involves the use of coercion to get
public school students into religious classrooms. Pp. 343 U. S.
311 -312. 303 N.Y.
161 , 100 N.E.2d 463, affirmed.

															The New York Court of Appeals sustained N.Y. Education Law §
3210 and the regulations thereunder permitting absence of students
from the public schools for religious observance and education,
against the claim that the program thereunder violated the Federal
Constitution. 303 N.Y.
161 , 100 N.E.2d 463. On appeal to this Court, affirmed, p. 343 U. S.
315 . Page 343 U. S. 308 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

															New York City has a program which permits its public schools to
release students during the school day so that they may leave the
school buildings and school grounds and go to religious centers for
religious instruction or devotional exercises. A student is
released on written request of his parents. Those not released stay
in the classrooms. The churches make weekly reports to the schools,
sending a list of children who have been released from public
school but who have not reported for religious instruction.
[ Footnote 1 ]

															This "released time" program involves neither religious
instruction in public school classrooms nor the expenditure Page 343 U. S. 309 of public funds. All costs, including the application blanks,
are paid by the religious organizations. The case is therefore
unlike McCollum v. Board of Education, 333 U.
S. 203 , which involved a "released time" program from
Illinois. In that case, the classrooms were turned over to
religious instructors. We accordingly held that the program
violated the First Amendment [ Footnote 2 ] which (by reason of the Fourteenth Amendment)
[ Footnote 3 ] prohibits the
states from establishing religion or prohibiting its free
exercise.

															Appellants, who are taxpayers and residents of New York City and
whose children attend its public schools, [ Footnote 4 ] challenge the present law, contending it
is, in essence, not different from the one involved in the McCollum case. Their argument, stated elaborately in
various ways, reduces itself to this: the weight and influence of
the school is put behind a program for religious instruction;
public school teachers police it, keeping tab on students who are
released; the classroom activities come to a halt while the
students who are released for religious instruction are on leave;
the school is a crutch on which the churches are leaning for
support in their religious training; without the cooperation of the
schools, this "released time" program, Page 343 U. S. 310 like the one in the McCollum case, would be futile and
ineffective. The New York Court of Appeals sustained the law
against this claim of unconstitutionality. 303
N.Y. 161 , 100 N.E.2d 463. The case is here on appeal. 28 U.S.C.
§ 1257(2).

															The briefs and arguments are replete with data bearing on the
merits of this type of "released time" program. Views pro and con
are expressed, based on practical experience with these programs
and with their implications. [ Footnote 5 ] We do not stop to summarize these materials,
nor to burden the opinion with an analysis of them. For they
involve considerations not germane to the narrow constitutional
issue presented. They largely concern the wisdom of the system, its
efficiency from an educational point of view, and the political
considerations which have motivated its adoption or rejection in
some communities. Those matters are of no concern here, since our
problem reduces itself to whether New York, by this system, has
either prohibited the "free exercise" of religion or has made a law
"respecting an establishment of religion" within the meaning of the
First Amendment. Page 343 U. S. 311 It takes obtuse reasoning to inject any issue of the "free
exercise" of religion into the present case. No one is forced to go
to the religious classroom, and no religious exercise or
instruction is brought to the classrooms of the public schools. A
student need not take religious instruction. He is left to his own
desires as to the manner or time of his religious devotions, if
any.

															There is a suggestion that the system involves the use of
coercion to get public school students into religious classrooms.
There is no evidence in the record before us that supports that
conclusion. [ Footnote 6 ] The
present record indeed tells us that the school authorities are
neutral in this regard, and do no more than release students whose
parents so request. If, in fact, coercion were used, if it were
established that any one or more teachers were using their office
to persuade or force students to take the religious instruction, a
wholly different case would be presented. [ Footnote 7 ] Hence, we put aside that claim of
coercion Page 343 U. S. 312 both as respects the "free exercise" of religion and "an
establishment of religion" within the meaning of the First
Amendment.

															Moreover, apart from that claim of coercion, we do not see how
New York by this type of "released time" program has made a law
respecting an establishment of religion within the meaning of the
First Amendment. There is much talk of the separation of Church and
State in the history of the Bill of Rights and in the decisions
clustering around the First Amendment. See Everson v. Board of
Education, 330 U. S. 1 ; McCollum v. Board of Education, supra. 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
"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. Otherwise the state and religion
would be aliens to each other -- hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or
fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the
Constitution. Prayers in our legislative halls; the appeals Page 343 U. S. 313 to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God"
in our courtroom oaths -- these and all other references to the
Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with
which the Court opens each session: "God save the United States and
this Honorable Court."

															We would have to press the concept of separation of Church and
State to these extremes to condemn the present law on
constitutional grounds. The nullification of this law would have
wide and profound effects. A Catholic student applies to his
teacher for permission to leave the school during hours on a Holy
Day of Obligation to attend a mass. A Jewish student asks his
teacher for permission to be excused for Yom Kippur. A Protestant
wants the afternoon off for a family baptismal ceremony. In each
case, the teacher requires parental consent in writing. In each
case, the teacher, in order to make sure the student is not a
truant, goes further and requires a report from the priest, the
rabbi, or the minister. The teacher, in other words, cooperates in
a religious program to the extent of making it possible for her
students to participate in it. Whether she does it occasionally for
a few students, regularly for one, or pursuant to a systematized
program designed to further the religious needs of all the students
does not alter the character of the act.

															We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one chooses.
We make room for as wide a variety of beliefs and creeds as the
spiritual needs of man deem necessary. We sponsor an attitude on
the part of government that shows no partiality to any one group
and that lets each flourish according to the zeal of its adherents
and the appeal of its dogma. When the state Page 343 U. S. 314 encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events to sectarian
needs, it follows the best of our traditions. For it then respects
the religious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not would be
to find in the Constitution a requirement that the government show
a callous indifference to religious groups. That would be
preferring those who believe in no religion over those who do
believe. 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. The government must be neutral when it comes to
competition between sects. It may not thrust any sect on any
person. It may not make a religious observance compulsory. It may
not coerce anyone to attend church, to observe a religious holiday,
or to take religious instruction. But it can close its doors or
suspend its operations as to those who want to repair to their
religious sanctuary for worship or instruction. No more than that
is undertaken here.

															This program may be unwise and improvident from an educational
or a community viewpoint. That appeal is made to us on a theory,
previously advanced, that each case must be decided on the basis of
"our own prepossessions." See McCollum v. Board of Education,
supra, p. 333 U. S. 238 .
Our individual preferences, however, are not the constitutional
standard. The constitutional standard is the separation of Church
and State. The problem, like many problems in constitutional law,
is one of degree. See McCollum v. Board of Education,
supra, p. 333 U. S.
231 . Page 343 U. S. 315 In the McCollum case, the classrooms were used for
religious instruction and the force of the public school was used
to promote that instruction. Here, as we have said, the public
schools do no more than accommodate their schedules to a program of
outside religious instruction. We follow the McCollum case. [ Footnote 8 ] But we
cannot expand it to cover the present released time program unless
separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the religious
needs of the people. We cannot read into the Bill of Rights such a
philosophy of hostility to religion. Affirmed. [ Footnote 1 ]

															The New York City released time program is embodied in the
following provisions:

															(a) N.Y. Education Law, § 3210, subdiv. 1(b), which provides
that "Absence for religious observance and education shall be
permitted under rules that the commissioner shall establish."

															(b) Regulations of the Commissioner of Education of the State of
New York, Art. 17, § 154 (1 N.Y. Official Code Comp. 683), which
provide for absence during school hours for religious observance
and education outside the school grounds [par. 1], where conducted
by or under the control of a duly constituted religious body [par.
2]. Students must obtain written requests from their parents or
guardians to be excused for such training [par. 1], and must
register for the training and have a copy of their registration
filed with the public school authorities [par. 3]. Weekly reports
of their attendance at such religious schools must be filed with
their principal or teacher [par. 4]. Only one hour a week is to be
allowed for such training, at the end of a class session [par. 5],
and where more than one religious school is conducted, the hour of
release shall be the same for all religious schools [par. 6].

															(c) Regulations of the Board of Education of the City of New
York, which provide similar rules supplementing the State
Commissioner's regulations, with the following significant
amplifications: no announcement of any kind will be made in the
public schools relative to the program [rule 1]. The religious
organizations and parents will assume full responsibility for
attendance at the religious schools and will explain any failures
to attend on the weekly attendance reports [rule 3]. Students who
are released will be dismissed from school in the usual way [rule
5]. There shall be no comment by any principal or teacher on
attendance or nonattendance of any pupil upon religious instruction
[rule 6].

															[ Footnote 2 ]

															The First Amendment reads in relevant part, "Congress shall make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof."

															[ Footnote 3 ] See Stromberg v. California, 283 U.
S. 359 ; Cantwell v. Connecticut, 310 U.
S. 296 ; Murdock v. Pennsylvania, 319 U.
S. 105 .

															[ Footnote 4 ]

															No problem of this Court's jurisdiction is posed in this case,
since, unlike the appellants in Doremus v. Board of
Education, 342 U. S. 429 ,
appellants here are parents of children currently attending schools
subject to the released time program.

															[ Footnote 5 ] See, e.g., Beckes, Weekday Religious Education
(National Conference of Christians and Jews, Human Relations
Pamphlet No. 6); Butts, American Tradition in Religion and
Education, pp 188, 199; Moehlman, The Wall of Separation between
Church and State, pp. 123, 155 ff.; Moehlman, The Church as
Educator, pp. 103 ff.; Moral and Spiritual Values in the Public
Schools (Educational Policies Commission, 1951); Newman, The
Sectarian Invasion of Our Public Schools; Public School Time for
Religious Education, 12 Jewish Education 130 (January, 1941);
Religious Instruction On School Time, 7 Frontiers of Democracy 72
(1940); Released Time for Religious Education in New York City's
Schools (Public Education Association, June 30, 1943); Released
Time for Religious Education in New York City's Schools (Public
Education Association, June 30, 1945); Released Time for Religious
Education in New York City Schools (Public Education Association,
1949); 2 Stokes, Church and State in the United States, pp.
523-548; The Status Of Religious Education In The Public Schools
(National Education Association).

															[ Footnote 6 ]

															Nor is there any indication that the public schools enforce
attendance at religious schools by punishing absentees from the
released time programs for truancy.

															[ Footnote 7 ]

															Appellants contend that they should have been allowed to prove
that the system is, in fact, administered in a coercive manner. The
New York Court of Appeals declined to grant a trial on this issue,
noting, inter alia, that appellants had not properly
raised their claim in the manner required by state practice. 303 N.Y.
161 , 174, 100 N.E.2d 463, 469. This independent state ground
for decision precludes appellants from raising the issue of
maladministration in this proceeding. See Louisville &
Nashville R. Co. v. Woodford, 234 U. S.
46 , 234 U. S. 51 ; Atlantic Coast Line R. Co. v. Mims, 242 U.
S. 532 , 242 U. S. 535 ; American Surety Co. v. Baldwin, 287 U.
S. 156 , 287 U. S.
169 .

															The only allegation in the complaint that bears on the issue is
that the operation of the program

															"has resulted and inevitably results in the exercise of pressure
and coercion upon parents and children to secure attendance by the
children for religious instruction."

															But this charge does not even implicate the school authorities.
The New York Court of Appeals was therefore generous in labeling it
a "conclusory" allegation. 303 N.Y. at 174, 100 N.E.2d at 469.
Since the allegation did not implicate the school authorities in
the use of coercion, there is no basis for holding that the New
York Court of Appeals under the guise of local practice defeated a
federal right in the manner condemned by Brown v. Western R. of
Alabama, 338 U. S. 294 , and
related cases.

															[ Footnote 8 ]

															Three of us -- THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR.
JUSTICE BURTON -- who join this opinion agreed that the "released
time" program involved in the McCollum case was
unconstitutional. It was our view at the time that the present type
of "released time" program was not prejudged by the McCollum case, a conclusion emphasized by the reservation
of the question in the separate opinion by MR. JUSTICE FRANKFURTER
in which MR. JUSTICE BURTON joined. See 333 U.S. at 333 U. S. 225 ,
where it was said,

															"Of course, 'released time,' as a generalized conception,
undefined by differentiating particularities, is not an issue for
Constitutional adjudication. Local programs differ from each other
in many and crucial respects. . . . It is only when challenge is
made to the share that the public schools have in the execution of
a particular 'released time' program that close judicial scrutiny
is demanded of the exact relation between the religious instruction
and the public educational system in the specific situation before
the Court."

															MR. JUSTICE BLACK, dissenting. Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 ,
held invalid as an "establishment of religion" an Illinois system
under which school children, compelled by law to go to public
schools, were freed from some hours of required school work on
condition that they attend special religious classes held in the
school buildings. Although the classes were taught by sectarian Page 343 U. S. 316 teachers neither employed nor paid by the state, the state did
use its power to further the program by releasing some of the
children from regular class work, insisting that those released
attend the religious classes, and requiring that those who remained
behind do some kind of academic work while the others received
their religious training. We said this about the Illinois
system:

															"Pupils compelled by law to go to school for secular education
are released in part from their legal duty upon the condition that
they attend the religious classes. 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. And it falls
squarely under the ban of the First Amendment. . . ." McCollum v. Board of Education, supra, at pp. 333 U. S.
209 -210.

															I see no significant difference between the invalid Illinois
system and that of New York here sustained. Except for the use of
the school buildings in Illinois, there is no difference between
the systems which I consider even worthy of mention. In the New
York program, as in that of Illinois, the school authorities
release some of the children on the condition that they attend the
religious classes, get reports on whether they attend, and hold the
other children in the school building until the religious hour is
over. As we attempted to make categorically clear, the McCollum decision would have been the same if the
religious classes had not been held in the school buildings. We
said:

															"Here not only are the State's tax supported public
school buildings used for the dissemination of religious doctrines.
The State also affords sectarian groups an invaluable aid
in that it helps to provide pupils for their religious classes
through use of the State's compulsory public school machinery. This is Page 343 U. S. 317 not separation of Church and State."

															(Emphasis supplied.) McCollum v. Board of Education,
supra, at p. 333 U. S. 212 . McCollum thus held that Illinois could not
constitutionally manipulate the compelled classroom hours of its
compulsory school machinery so as to channel children into
sectarian classes. Yet that is exactly what the Court holds New
York can do.

															I am aware that our McCollum decision on separation of
Church and State has been subjected to a most searching examination
throughout the country. Probably few opinions from this Court in
recent years have attracted more attention or stirred wider debate.
Our insistence on "a wall between Church and State which must be
kept high and impregnable" has seemed to some a correct exposition
of the philosophy and a true interpretation of the language of the
First Amendment to which we should strictly adhere. [ Footnote 2/1 ] With equal conviction and
sincerity, others have thought the McCollum decision
fundamentally wrong, [ Footnote 2/2 ]
and have pledged continuous warfare against it. [ Footnote 2/3 ] The opinions in the court below and
the briefs here reflect these diverse viewpoints. In dissenting
today, I mean to do more than give routine approval to our McCollum decision. I mean also to reaffirm my faith in
the Page 343 U. S. 318 fundamental philosophy expressed in McCollum and Everson v. Board of Education, 330 U. S.
1 . That reaffirmance can be brief because of the
exhaustive opinions in those recent cases.

															Difficulty of decision in the hypothetical situations mentioned
by the Court, but not now before us, should not confuse the issues
in this case. Here, the sole question is whether New York can use
its compulsory education laws to help religious sects get
attendants presumably too unenthusiastic to go unless moved to do
so by the pressure of this state machinery. That this is the plan,
purpose, design and consequence of the New York program cannot be
denied. The state thus makes religious sects beneficiaries of its
power to compel children to attend secular schools. Any use of such
coercive power by the state to help or hinder some religious sects
or to prefer all religious sects over nonbelievers or vice versa is
just what I think the First Amendment forbids. In considering
whether a state has entered this forbidden field, the question is
not whether it has entered too far, but whether it has entered at
all. New York is manipulating its compulsory education laws to help
religious sects get pupils. This is not separation, but
combination, of Church and State.

															The Court's validation of the New York system rests in part on
its statement that Americans are "a religious people whose
institutions presuppose a Supreme Being." This was at least as true
when the First Amendment was adopted, and it was just as true when
eight Justices of this Court invalidated the released time system
in McCollum on the premise that a state can no more "aid
all religions" than it can aid one. [ Footnote 2/4 ] It was precisely because Eighteenth Page 343 U. S. 319 Century Americans were a religious people divided into many
fighting sects that we were given the constitutional mandate to
keep Church and State completely separate. Colonial history had
already shown that, here as elsewhere, zealous sectarians entrusted
with governmental power to further their causes would sometimes
torture, maim and kill those they branded "heretics," "atheists" or
"agnostics." [ Footnote 2/5 ] The
First Amendment was therefore to insure that no one powerful sect
or combination of sects could use political or governmental power
to punish dissenters whom they could not convert to their faith.
Now, as then, it is only by wholly isolating the state from the
religious sphere and compelling it to be completely neutral, that
the freedom of each and every denomination and of all nonbelievers
can be maintained. It is this neutrality the Court abandons today
when it treats New York's coercive system as a program which merely
"encourages religious instruction or cooperates with religious
authorities." The abandonment is all the more dangerous to liberty
because of the Court's legal exaltation of the orthodox and its
derogation of unbelievers.

															Under our system of religious freedom, people have gone to their
religious sanctuaries not because they feared the law, but because
they loved their God. The choice of all has been as free as the
choice of those who answered the call to worship moved only by the
music of the old Sunday morning church bells. The spiritual mind of
man has thus been free to believe, disbelieve, or doubt, without
repression, great or small, by the heavy Page 343 U. S. 320 hand of government. Statutes authorizing such repression have
been stricken. Before today, our judicial opinions have refrained
from drawing invidious distinctions between those who believe in no
religion and those who do believe. The First Amendment has lost
much if the religious follower and the atheist are no longer to be
judicially regarded as entitled to equal justice under law.

															State help to religion injects political and party prejudices
into a holy field. It too often substitutes force for prayer, hate
for love, and persecution for persuasion. Government should not be
allowed, under cover of the soft euphemism of "cooperation," to
steal into the sacred area of religious choice.

															[ Footnote 2/1 ] See, e.g., Newman, The Sectarian Invasion of Our Public
Schools; Moehlman, The Wall of Separation between Church and State;
Thayer, The Attack upon the American Secular School, pp. 179-199;
Butts, The American Tradition in Religion and Education, pp.
201-208. See also Symposium on Religion and the State, 14
Law & Contemp.Prob. 1-159.

															[ Footnote 2/2 ] See, e.g., O'Neill, Religion and Education Under the
Constitution, pp. 219-253; Parsons, The First Freedom, pp. 158-178;
Van Dusen, God in Education. See also Symposium on
Religion and the State, supra. [ Footnote 2/3 ] See Moehlman, supra, 343
U.S. 306 fn2/1|>n. 1, at p. 42. O'Neill, supra, 343
U.S. 306 fn2/2|>n. 2, at pp. 254-272.

															[ Footnote 2/4 ]

															A state policy of aiding "all religions" necessarily requires a
governmental decision as to what constitutes "a religion." Thus is
created a governmental power to hinder certain religious beliefs by
denying their character as such. See, e.g., the
Regulations of the New York Commissioner of Education providing
that

															"The courses in religious observance and education must be
maintained and operated by or under the control of duly
constituted religious bodies."

															(Emphasis added.) Art. 17, § 154, 1 N.Y. Official Code Comp.
683. This provides precisely the kind of censorship which we have
said the Constitution forbids. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S.
305 .

															[ Footnote 2/5 ]

															Wertenbaker, The Puritan Oligarchy, 213-214.

															MR. JUSTICE FRANKFURTER, dissenting.

															By way of emphasizing my agreement with MR. JUSTICE JACKSON s
dissent, I add a few words.

															The Court tells us that, in the maintenance of its public
schools, "[The State government] can close its doors or suspend its
operations" so that its citizens may be free for religious
devotions or instruction. If that were the issue, it would not rise
to the dignity of a constitutional controversy. Of course a State
may provide that the classes in its schools shall be dismissed, for
any reason, or no reason, on fixed days, or for special occasions.
The essence of this case is that the school system did not "close
its doors" and did not "suspend its operations." There is all the
difference in the world between letting the children out of school
and letting some of them out of school into religious classes. If
everyone is free to make what use he will of time wholly
unconnected from schooling required by law -- those who wish
sectarian instruction devoting it to that purpose, those who have
ethical instruction at home, to that, those who study music, to
that -- then of course there is no conflict with the Fourteenth
Amendment. Page 343 U. S. 321 The pith of the case is that formalized religious instruction is
substituted for other school activity which those who do not
participate in the released time program are compelled to attend.
The school system is very much in operation during this kind of
released time. If its doors are closed, they are closed upon those
students who do not attend the religious instruction, in order to
keep them within the school. That is the very thing which raises
the constitutional issue. It is not met by disregarding it. Failure
to discuss this issue does not take it out of the case.

															Again, the Court relies upon the absence from the record of
evidence of coercion in the operation of the system. "If, in fact,
coercion were used," according to the Court,

															"if it were established that any one or more teachers were using
their office to persuade or force students to take the religious
instruction, a wholly different case would be presented."

															Thus, "coercion" in the abstract is acknowledged to be fatal.
But the Court disregards the fact that, as the case comes to us,
there could be no proof of coercion, for the appellants were not
allowed to make proof of it. Appellants alleged that

															"The operation of the released time program has resulted and
inevitably results in the exercise of pressure and coercion upon
parents and children to secure attendance by the children for
religious instruction."

															This allegation -- that coercion was, in fact, present and is
inherent in the system, no matter what disavowals might be made in
the operating regulations -- was denied by appellees. Thus, were
drawn issues of fact which cannot be determined, on any conceivable
view of judicial notice, by judges out of their own knowledge or
experience. Appellants sought an opportunity to adduce evidence in
support of these allegations at an appropriate trial. And though
the courts below cited the concurring opinion in McCollum v.
Board of Education, 333 U. S. 203 , 333 U. S. 226 ,
to "emphasize the importance of detailed Page 343 U. S. 322 analysis of the facts to which the Constitutional test of
Separation is to be applied," they denied that opportunity on the
ground that such proof was irrelevant to the issue of
constitutionality. See 198 Misc. 631, 641, 99 N.Y.S.2d
339, 348-349; 303 N.Y.
161 , 174 175, 100 N.E.2d 463, 469. [ Footnote 3/1 ]

															When constitutional issues turn on facts, it is a strange
procedure indeed not to permit the facts to be established. When
such is the case, there are weighty considerations for us to
require the State court to make its determination only after a
thorough canvass of all the circumstances and not to bar them from
consideration. Cf. Chastleton Corp. v. Sinclair, 264 U. S. 543 ; Hammond v. Schappi Bus Line, 275 U.
S. 164 . If we are to decide this case on the present
record, however, a strict adherence to the usage of courts in
ruling on the sufficiency of pleadings would require us to take as
admitted the facts pleaded in the appellants' complaint, including
the fact of coercion, actual and inherent. See Judge Fuld,
dissenting below, 303 N.Y. at 185, 100 N.E.2d at 475. Even on a
more latitudinarian view, I cannot see how a finding that coercion
was absent, deemed critical by this Court in sustaining the
practice, can be made here, when appellants were prevented from
making a timely showing of coercion because the courts below
thought it irrelevant.

															The result in the McCollum case, 333 U.
S. 203 , was based on principles that received unanimous
acceptance by this Court, barring only a single vote. I agree with
MR. JUSTICE BLACK that those principles are disregarded Page 343 U. S. 323 in reaching the result in this case. [ Footnote 3/2 ] Happily they are not disavowed by the
Court. From this, I draw the hope that, in future variations of the
problem which are bound to come here, these principles may again be
honored in the observance.

															The deeply divisive controversy aroused by the attempts to
secure public school pupils for sectarian instruction would
promptly end if the advocates of such instruction were content to
have the school "close its doors or suspend its operations" -- that
is, dismiss classes in their entirety, without discrimination --
instead of seeking to use the public schools as the instrument for
securing attendance at denominational classes. The unwillingness of
the promoters of this movement to dispense with such use of the
public schools betrays a surprising want of confidence in the
inherent power of the various faiths to draw children to outside
sectarian classes -- an attitude that hardly reflects the faith of
the greatest religious spirits.

															[ Footnote 3/1 ]

															Issues that raise federal claims cannot be foreclosed by the
State court treating the allegations as "conclusory in character." 303 N.Y.
161 , 174, 100 N.E.2d 463, 469. This is so even when a federal
statute is involved. Brown v. Western R. of Alabama, 338 U. S. 294 . A fortiori, when the appeal is to the Constitution of the
United States.

															[ Footnote 3/2 ]

															The reservation made by four of the Justices in the McCollum case did not, of course, refer to the New York
situation any more than it referred to that form of "released time"
under which the whole student body is dismissed. This was the
reservation:

															"We do not consider, as indeed we could not, school programs not
before us which, though colloquially characterized as 'released
time,' present situations differing in aspects that may well be
constitutionally crucial. Different forms which 'released time' has
taken during more than thirty years of growth include programs
which, like that, before us, could not withstand the test of the
Constitution; others may be found unexceptionable."

															333 U.S. at 333 U. S.
231 .

															MR. JUSTICE JACKSON, dissenting.

															This released time program is founded upon a use of the State's
power of coercion, which, for me, determines its
unconstitutionality. Stripped to its essentials, the plan has two
stages: first, that the State compel each student to yield a large
part of his time for public secular Page 343 U. S. 324 education; and, second, that some of it be "released" to him on
condition that he devote it to sectarian religious purposes.

															No one suggests that the Constitution would permit the State
directly to require this "released" time to be spent "under the
control of a duly constituted religious body." This program
accomplishes that forbidden result by indirection. If public
education were taking so much of the pupils' time as to injure the
public or the students' welfare by encroaching upon their religious
opportunity, simply shortening everyone's school day would
facilitate voluntary and optional attendance at Church classes. But
that suggestion is rejected upon the ground that, if they are made
free, many students will not go to the Church. Hence, they must be
deprived of freedom for this period, with Church attendance put to
them as one of the two permissible ways of using it.

															The greater effectiveness of this system over voluntary
attendance after school hours is due to the truant officer who, if
the youngster fails to go to the Church school, dogs him back to
the public school room. Her,e schooling is more or less suspended
during the "released time" so the nonreligious attendants will not
forge ahead of the churchgoing absentees. But it serves as a
temporary jail for a pupil who will not go to Church. It takes more
subtlety of mind than I possess to deny that this is governmental
constraint in support of religion. It is as unconstitutional, in my
view, when exerted by indirection as when exercised
forthrightly.

															As one whose children, as a matter of free choice, have been
sent to privately supported Church schools, I may challenge the
Court's suggestion that opposition to this plan can only be
anti-religious, atheistic, or agnostic. My evangelistic brethren
confuse an objection to compulsion with an objection to religion.
It is possible to hold a faith with enough confidence to believe
that what should be Page 343 U. S. 325 rendered to God does not need to be decided and collected by
Caesar.

															The day that this country ceases to be free for irreligion, it
will cease to be free for religion -- except for the sect that can
win political power. The same epithetical jurisprudence used by the
Court today to beat down those who oppose pressuring children into
some religion can devise as good epithets tomorrow against those
who object to pressuring them into a favored religion. And, after
all, if we concede to the State power and wisdom to single out
"duly constituted religious" bodies as exclusive alternatives for
compulsory secular instruction, it would be logical to also uphold
the power and wisdom to choose the true faith among those "duly
constituted." We start down a rough road when we begin to mix
compulsory public education with compulsory godliness.

															A number of Justices just short of a majority of the majority
that promulgates today's passionate dialectics joined in answering
them in Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 . The
distinction attempted between that case and this is trivial, almost
to the point of cynicism, magnifying its nonessential details and
disparaging compulsion which was the underlying reason for
invalidity. A reading of the Court's opinion in that case along
with its opinion in this case will show such difference of
overtones and undertones as to make clear that the McCollum case has passed like a storm in a teacup. The
wall which the Court was professing to erect between Church and
State has become even more warped and twisted than I expected.
Today's judgment will be more interesting to students of psychology
and of the judicial processes than to students of constitutional
law.

Summary: In Zorach v. Clauson, the Supreme Court upheld a New York City program that allowed students to be released from public schools during school hours to attend religious instruction or devotional exercises at religious centers. The program was found to not violate the First Amendment, as it did not prohibit the free exercise of religion nor establish a law respecting an establishment of religion. The Court distinguished this case from McCollum v. Board of Education, where a similar "released time" program was found unconstitutional due to the use of public school classrooms and the involvement of public school teachers. In this case, the religious instruction took place outside of school premises and did not involve the use of public funds or coercion to attend. The Court affirmed the New York Court of Appeals' decision, holding that the program did not violate the Federal Constitution.


U.S. Supreme Court Braunfeld v. Brown, 366
U.S. 599 (1961) Braunfeld v. Brown No. 67 Argued December 8,
1960 Decided May 29, 1961 366
U.S. 599 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA Syllabus Appellants are members of the Orthodox Jewish Faith, which
requires the closing of their places of business and total
abstention from all manner of work from nightfall each Friday until
nightfall each Saturday. As merchants engaged in the retail sale of
clothing and home furnishings in Philadelphia, they sued to enjoin
enforcement of a 1959 Pennsylvania criminal statute which forbade
the retail sale on Sundays of those commodities and other specified
commodities. They claimed that the statute violated the Equal
Protection Clause of the Fourteenth Amendment and constituted a law
respecting an establishment of religion, and that it interfered
with the free exercise of their religion by imposing serious
economic disadvantages upon them if they adhere to the observance
of their Sabbath, and that it would operate so as to hinder the
Orthodox .Jewish Faith in gaining new members. Held: the statute does not violate the Equal Protection
Clause of the Fourteenth Amendment, nor constitute a law respecting
an establishment of religion, Two Guys from Harrison-Allentown,
Inc. v. McGinley, ante, p. 366 U. S. 582 , and
it does not prohibit the free exercise of appellants' religion,
within the meaning of the First Amendment, made applicable to the
States by the Fourteenth Amendment. Pp. 366 U. S.
600 -610. 184 F.
Supp. 352 affirmed. Page 366 U. S. 600 MR. JUSTICE WARREN announced the judgment of the Court and an
opinion in which MR. JUSTICE BLACK, MR. JUSTICE CLARK, and MR.
JUSTICE WHITTAKER concur.

															This case concerns the constitutional validity of the
application to appellants of the Pennsylvania criminal statute,
[ Footnote 1 ] enacted in 1959,
which proscribes the Sunday retail sale of certain enumerated
commodities. Among the questions presented are whether the statute
is a law Page 366 U. S. 601 respecting an establishment of religion and whether the statute
violates equal protection. Since both of these questions, in
reference to this very statute, have already been answered in the
negative, Two Guys from Harrison-Allentown, Inc. v. McGinley,
ante, p. 366 U. S. 582 , and
since appellants present nothing new regarding them, they need not
be considered here. Thus, the only question for consideration is
whether the statute interferes with the free exercise of
appellants' religion.

															Appellants are merchants in Philadelphia who engage in the
retail sale of clothing and home furnishings within the
proscription of the statute in issue. Each of the appellants is a
member of the Orthodox Jewish faith, which requires the closing of
their places of business and a total abstention from all manner of
work from nightfall each Friday until nightfall each Saturday. They
instituted a suit in the court below seeking a permanent injunction
against the enforcement of the 1959 statute. Their complaint, as
amended, alleged that appellants had previously kept their places
of business open on Sunday; that each of appellants had done a
substantial amount of business on Sunday, compensating somewhat for
their closing on Saturday; that Sunday closing will result in
impairing the ability of all appellants to earn a livelihood, and
will render appellant Braunfeld unable to continue in his business,
thereby losing his capital investment; that the statute is
unconstitutional for the reasons stated above.

															A three-judge court was properly convened and it dismissed the
complaint on the authority of the Two Guys from Harrison case. 184 F.
Supp. 352 . On appeal brought under 28 U.S.C. § 1253, we noted
probable jurisdiction, 362 U.S. 987.

															Appellants contend that the enforcement against them of the
Pennsylvania statute will prohibit the free exercise Page 366 U. S. 602 of their religion because, due to the statute's compulsion to
close on Sunday, appellants will suffer substantial economic loss,
to the benefit of their non-Sabbatarian competitors, if appellants
also continue their Sabbath observance by closing their businesses
on Saturday; that this result will either compel appellants to give
up their Sabbath observance, a basic tenet of the Orthodox Jewish
faith, or will put appellants at a serious economic disadvantage if
they continue to adhere to their Sabbath. Appellants also assert
that the statute will operate so as to hinder the Orthodox Jewish
faith in gaining new adherents. And the corollary to these
arguments is that if the free exercise of appellants' religion is
impeded, that religion is being subjected to discriminatory
treatment by the State.

															In McGowan v. Maryland, ante, at pp. 366 U. S.
437 -440, we noted the significance that this Court has
attributed to the development of religious freedom in Virginia in
determining the scope of the First Amendment's protection. We
observed that, when Virginia passed its Declaration of Rights in
1776, providing that "all men are equally entitled to the free
exercise of religion," Virginia repealed its laws which in any way
penalized "maintaining any opinions in matters of religion,
forbearing to repair to church, or the exercising any mode of
worship whatsoever." But Virginia retained its laws prohibiting
Sunday labor.

															We also took cognizance, in McGowan, of the evolution
of Sunday Closing Laws from wholly religious sanctions to
legislation concerned with the establishment of a day of community
tranquillity, respite and recreation, a day when the atmosphere is
one of calm and relaxation, rather than one of commercialism, as it
is during the other six days of the week. We reviewed the still
growing state Page 366 U. S. 603 preoccupation with improving the health, safety, morals and
general wellbeing of our citizens.

															Concededly, appellants and all other persons who wish to work on
Sunday will be burdened economically by the State's day of rest
mandate, and appellants point out that their religion requires them
to refrain from work on Saturday as well. Our inquiry, then, is
whether, in these circumstances, the First and Fourteenth
Amendments forbid application of the Sunday Closing Law to
appellants.

															Certain aspects of religious exercise cannot in any way be
restricted or burdened by either federal or state legislation.
Compulsion by law of the acceptance of any creed or the practice of
any form of worship is strictly forbidden. The freedom to hold
religious beliefs and opinions is absolute. Cantwell v.
Connecticut, 310 U. S. 296 , 310 U. S. 303 ; Reynolds v. United States, 98 U. S.
145 , 98 U. S. 166 .
Thus, in West Virginia State Board of Education v.
Barnette, 319 U. S. 624 ,
this Court held that state action compelling school children to
salute the flag, on pain of expulsion from public school, was
contrary to the First and Fourteenth Amendments when applied to
those students whose religious beliefs forbade saluting a flag. But
this is not the case at bar; the statute before us does not make
criminal the holding of any religious belief or opinion, nor does
it force anyone to embrace any religious belief or to say or
believe anything in conflict with his religious tenets.

															However, the freedom to act, even when the action is in accord
with one's religious convictions, is not totally free from
legislative restrictions. Cantwell v. Connecticut, supra, at pp. 310 U. S.
303 -304, 310 U. S. 306 .
As pointed out in Reynolds v. United States, supra, at p. 98 U. S. 164 ,
legislative power over mere opinion is forbidden, but it may reach
people's actions when they are found to be in violation of
important social duties or subversive of good order, even when Page 366 U. S. 604 the actions are demanded by one's religion. This was articulated
by Thomas Jefferson when he said:

															"Believing with you that religion is a matter which lies solely
between man and his God, that he owes account to none other for his
faith or his worship, that the legislative powers of government
reach actions only, and not opinions, I contemplate with
sovereign reverence that act of the whole American people which
declared that their legislature should 'make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof,' thus building a wall of separation between church and
State. Adhering to this expression of the supreme will of the
nation in behalf of the rights of conscience, I shall see with
sincere satisfaction the progress of those sentiments which tend to
restore to man all his natural rights, convinced he has no
natural right in opposition to his social duties. "

															(Emphasis added.) 8 Works of Thomas Jefferson 113. [ Footnote 2 ] And, in the Barnette case, the Court was careful to point out that

															"The freedom asserted by these appellees does not bring them
into collision with rights asserted by any other individual. It is
such conflicts which most frequently require intervention of the
State to determine where the rights of one end and those of another
begin. . . . It is . . . to be noted that the compulsory flag
salute and Page 366 U. S. 605 pledge requires affirmation of a belief and an attitude of mind. "

															319 U.S. at 319 U. S. 630 , 319 U. S. 633 .
(Emphasis added.)

															Thus, in Reynolds v. United States, this Court upheld
the polygamy conviction of a member of the Mormon faith despite the
fact that an accepted doctrine of his church then imposed upon its
male members the duty to practice polygamy. And, in Prince v.
Massachusetts, 321 U. S. 158 ,
this Court upheld a statute making it a crime for a girl under
eighteen years of age to sell any newspapers, periodicals, or
merchandise in public places despite the fact that a child of the
Jehovah's Witnesses faith believed that it was her religious duty
to perform this work.

															It is to be noted that, in the two cases just mentioned, the
religious practices themselves conflicted with the public interest.
In such cases, to make accommodation between the religious action
and an exercise of state authority is a particularly delicate task, id. at 321 U. S. 165 ,
because resolution in favor of the State results in the choice to
the individual of either abandoning his religious principle or
facing criminal prosecution.

															But, again, this is not the case before us because the statute
at bar does not make unlawful any religious practices of
appellants; the Sunday law simply regulates a secular activity and,
as applied to appellants, operates so as to make the practice of
their religious beliefs more expensive. Furthermore, the law's
effect does not inconvenience all members of the Orthodox Jewish
faith, but only those who believe it necessary to work on Sunday.
[ Footnote 3 ] And even these are
not faced with as serious a choice as forsaking their religious
practices or subjecting themselves to criminal prosecution. Fully
recognizing that the alternatives Page 366 U. S. 606 open to appellants and others similarly situated -- retaining
their present occupations and incurring economic disadvantage or
engaging in some other commercial activity which does not call for
either Saturday or Sunday labor -- may well result in some
financial sacrifice in order to observe their religious beliefs,
still the option is wholly different than when the legislation
attempts to make a religious practice itself unlawful.

															To strike down, without the most critical scrutiny, legislation
which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the
religious practice itself, would radically restrict the operating
latitude of the legislature. Statutes which tax income and limit
the amount which may be deducted for religious contributions impose
an indirect economic burden on the observance of the religion of
the citizen whose religion requires him to donate a greater amount
to his church; statutes which require the courts to be closed on
Saturday and Sunday impose a similar indirect burden on the
observance of the religion of the trial lawyer whose religion
requires him to rest on a weekday. The list of legislation of this
nature is nearly limitless.

															Needless to say, when entering the area of religious freedom, we
must be fully cognizant of the particular protection that the
Constitution has accorded it. Abhorrence of religious persecution
and intolerance is a basic part of our heritage. But we are a
cosmopolitan nation made up of people of almost every conceivable
religious preference. These denominations number almost three
hundred. Year Book of American Churches for 1958, 257 et
seq. Consequently, it cannot be expected, much less required,
that legislators enact no law regulating conduct that may in some
way result in an economic disadvantage to some religious sects and
not to others because of the special practices of the various
religions. We do not believe that such an effect is an absolute
test Page 366 U. S. 607 for determining whether the legislation violates the freedom of
religion protected by the First Amendment.

															Of course, to hold unassailable all legislation regulating
conduct which imposes solely an indirect burden on the observance
of religion would be a gross oversimplification. If the purpose or
effect of a law is to impede the observance of one or all
religions, or is to discriminate invidiously between religions,
that law is constitutionally invalid even though the burden may be
characterized as being only indirect. But if the State regulates
conduct by enacting a general law within its power, the purpose and
effect of which is to advance the State's secular goals, the
statute is valid despite its indirect burden on religious
observance unless the State may accomplish its purpose by means
which do not impose such a burden. See Cantwell v. Connecticut,
supra, at pp. 310 U. S.
304 -305. [ Footnote
4 ]

															As we pointed out in McGowan v. Maryland, supra, at pp. 366 U. S.
444 -445, we cannot find a State without power to provide
a weekly respite from all labor and at the same time, to set one
day of the week apart from the others as a day of rest, repose,
recreation and tranquillity -- a day when the hectic tempo of
everyday existence ceases and a more pleasant atmosphere is
created, a day which all members of the family and community have
the opportunity to spend and enjoy together, a day on which people
may visit friends and relatives who are not available during
working days, a day when the weekly laborer may best regenerate
himself. This is particularly true in this day and age of
increasing state concern with public welfare legislation. Page 366 U. S. 608 Also, in McGowan, we examined several suggested
alternative means by which it was argued that the State might
accomplish its secular goals without even remotely or incidentally
affecting religious freedom. Ante at pp. 366 U. S.
450 -452. We found there that a State might well find
that those alternatives would not accomplish bringing about a
general day of rest. We need not examine them again here.

															However, appellants advance yet another means at the State's
disposal which they would find unobjectionable. They contend that
the State should cut an exception from the Sunday labor
proscription for those people who, because of religious conviction,
observe a day of rest other than Sunday. By such regulation,
appellants contend, the economic disadvantages imposed by the
present system would be removed, and the State's interest in having
all people rest one day would be satisfied.

															A number of States provide such an exemption, [ Footnote 5 ] and this may well be the wiser
solution to the problem. But our concern is not with the wisdom of
legislation, but with its constitutional limitation. Thus, reason
and experience teach that to permit the exemption might well
undermine the State's goal of providing a day that, as best
possible, eliminates the atmosphere of commercial noise and
activity. Although not dispositive of the issue, enforcement
problems would be more difficult since there would be two or more
days to police, rather than one, and it would be more difficult to
observe whether violations were occurring.

															Additional problems might also be presented by a regulation of
this sort. To allow only people who rest on a day other than Sunday
to keep their businesses open on that day might well provide these
people with an economic advantage over their competitors who
must Page 366 U. S. 609 remain closed on that day; [ Footnote 6 ] this might cause the Sunday observers to
complain that their religions are being discriminated against. With
this competitive advantage existing, there could well be the
temptation for some, in order to keep their businesses open on
Sunday, to assert that they have religious convictions which compel
them to close their businesses on what had formerly been their
least profitable day. This might make necessary a state-conducted
inquiry into the sincerity of the individual's religious beliefs,
[ Footnote 7 ] a practice which a
State might believe would itself run afoul of the spirit of
constitutionally protected religious guarantees. Finally, in order
to keep the disruption of the day at a minimum, exempted employers
would probably have to hire employees who themselves qualified for
the exemption because of their own religious beliefs, [ Footnote 8 ] a practice which a State
might feel to be opposed to its general policy prohibiting
religious discrimination in hiring. [ Footnote 9 ] For all of these reasons, we cannot say that
the Pennsylvania statute before us is invalid, either on its face
or as applied.

															MR. JUSTICE HARLAN concurs in the judgment. MR. JUSTICE BRENNAN
and MR. JUSTICE STEWART concur in Page 366 U. S. 610 our disposition of appellants' claims under the Establishment
Clause and the Equal Protection Clause. MR. JUSTICE FRANKFURTER and
MR. JUSTICE HARLAN have rejected appellants' claim under the Free
Exercise Clause in a separate opinion.

															Accordingly, the decision is Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE
HARLAN, see ante, p. 366 U. S.
459 .]

															[For dissenting opinion of MR. JUSTICE DOUGLAS, see
ante, p. 366 U. S.
561 .]

															[ Footnote 1 ]

															18 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 4699.10
provides:

															"Selling certain personal property on Sunday"

															"Whoever engages on Sunday in the business of selling, or sells
or offers for sale, on such day at retail, clothing and wearing
apparel, clothing accessories, furniture, housewares, home,
business or office furnishings, household, business or office
appliances, hardware, tools, paints, building and lumber supply
materials, jewelry, silverware, watches, clocks, luggage, musical
instruments and recordings, or toys, excluding novelties and
souvenirs, shall, upon conviction thereof in a summary proceeding
for the first offense, be sentenced to pay a fine of not exceeding
one hundred dollars ($100), and for the second or any subsequent
offense committed within one year after conviction for the first
offense, be sentenced to pay a fine of not exceeding two hundred
dollars ($200) or undergo imprisonment not exceeding thirty days in
default thereof."

															"Each separate sale or offer to sell shall constitute a separate
offense."

															"Information charging violations of this section shall be
brought within seventy-two hours after the commission of the
alleged offense and not thereafter."

															[ Footnote 2 ]

															Oliver Ellsworth, a member of the Constitutional Convention and
later Chief Justice, wrote:

															"But, while I assert the rights of religious liberty, I would
not deny that the civil power has a right, in some cases, to
interfere in matters of religion. It has a right to prohibit and
punish gross immoralities and impieties, because the open practice of these is of evil example and detriment."

															(Emphasis added.) Written in the Connecticut Courant, Dec. 17,
1787, as quoted in 1 Stokes, Church and State in the United States,
535.

															[ Footnote 3 ] See the concurring opinion of Mr. Justice Cardozo,
joined by Mr. Justice Brandeis and Mr. Justice Stone, in Hamilton v. Regents, 293 U. S. 245 , 293 U. S.
265 -268.

															[ Footnote 4 ]

															Thus, in cases like Murdock v. Pennsylvania, 319 U. S. 105 , and Follett v. McCormick, 321 U. S. 573 ,
this Court struck down municipal ordinances which, in application,
required religious colporteurs to pay a license tax as a condition
to the pursuit of their activities because the State's interest,
the obtaining of revenue, could be easily satisfied by imposing
this tax on nonreligious sources.

															[ Footnote 5 ] E.g., Ind.Ann.Stat. § 10-4301.

															[ Footnote 6 ]

															"If he [the Orthodox Jewish storekeeper] opens on Saturday, he
is subjected to very fierce competition indeed from Christian
shopkeepers, whereas, on Sunday, supposing he closes on Saturday,
he has an absolutely free run, and no competition from Christian
shopkeepers at all."

															311 Parliamentary Debates, Commons, 492.

															"It is true that the orthodox Jew will only be allowed to trade
until two o'clock on Sunday, but, during that time, he will have a
monopoly. That is a tremendous advantage. In many districts, he
will be the only trader with a shop open in that district."

															101 Parliamentary Debates, Lords, 430.

															[ Footnote 7 ]

															Connecticut, which has such an exemption statute, requires that
Sabbatarians, in order to qualify, file a written notice of
religious belief with the prosecuting attorney. Conn.Gen.Stat.Rev.
§ 53-303.

															[ Footnote 8 ] E.g., Va.Code Ann., § 18.1-359.

															[ Footnote 9 ] E.g., 43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) §§
951-963.

															MR. JUSTICE BRENNAN, concurring and dissenting.

															I agree with THE CHIEF JUSTICE that there is no merit in
appellants' establishment and equal protection claims. I dissent,
however, as to the claim that Pennsylvania has prohibited the free
exercise of appellants' religion.

															The Court has demonstrated the public need for a weekly surcease
from worldly labor, and set forth the considerations of convenience
which have led the Commonwealth of Pennsylvania to fix Sunday as
the time for that respite. I would approach this case differently,
from the point of view of the individuals whose liberty is --
concededly -- curtailed by these enactments. For the values of the
First Amendment, as embodied in the Fourteenth, look primarily
towards the preservation of personal liberty, rather than towards
the fulfillment of collective goals.

															The appellants are small retail merchants, faithful
practitioners of the Orthodox Jewish faith. They allege -- and the
allegation must be taken as true, since the case comes to us on a
motion to dismiss the complaint -- that ". . . one who does not
observe the Sabbath [by refraining from labor] . . . cannot be an
Orthodox Jew." Page 366 U. S. 611 In appellants' business area, Friday night and Saturday are busy
times; yet appellants, true to their faith, close during the Jewish
Sabbath, and make up some, but not all, of the business thus lost
by opening on Sunday. "Each of the plaintiffs," the complaint
continues,

															"does a substantial amount of business on Sundays, and the
ability of the plaintiffs to earn a livelihood will be greatly
impaired by closing their business establishment on Sundays."

															Consequences even more drastic are alleged:

															"Plaintiff, Abraham Braunfeld, will be unable to continue in his
business if he may not stay open on Sunday, and he will thereby
lose his capital investment."

															In other words, the issue in this case -- and we do not
understand either appellees or the Court to contend otherwise -- is
whether a State may put an individual to a choice between his
business and his religion. The Court today holds that it may. But I
dissent, believing that such a law prohibits the free exercise of
religion.

															The first question to be resolved, however, is somewhat broader
than the facts of this case. That question concerns the appropriate
standard of constitutional adjudication in cases in which a statute
is assertedly in conflict with the First Amendment, whether that
limitation applies of its own force or as absorbed through the less
definite words of the Fourteenth Amendment. The Court in such cases
is not confined to the narrow inquiry whether the challenged law is
rationally related to some legitimate legislative end. Nor is the
case decided by a finding that the State's interest is substantial
and important, as well as rationally justifiable. This canon of
adjudication was clearly stated by Mr. Justice Jackson, speaking
for the Court in West Virginia State Board of Education v.
Barnette, 319 U. S. 624 , 319 U. S. 639 (1943):

															"In weighing arguments of the parties, it is important to
distinguish between the due process clause of the Fourteenth
Amendment as an instrument for Page 366 U. S. 612 transmitting the principles of the First Amendment and those
cases in which it is applied for its own sake. The test of
legislation which collides with the Fourteenth Amendment, because
it also collides with the principles of the First, is much more
definite than the test when only the Fourteenth is involved. Much
of the vagueness of the due process clause disappears when the
specific prohibitions of the First become its standard. The right
of a state to regulate, for example, a public utility may well
include, so far as the due process test is concerned, power to
impose all of the restrictions which a legislature may have a
'rational basis' for adopting. But freedoms of speech and of press,
of assembly, and of worship, may not be infringed on such slender
grounds. They are susceptible of restriction only to prevent grave
and immediate danger to interests which the state may lawfully
protect. It is important to note that, while it is the Fourteenth
Amendment which bears directly upon the state, it is the more
specific limiting principles of the First Amendment that finally
govern this case."

															This exacting standard has been consistently applied by this
Court as the test of legislation under all clauses of the First
Amendment, not only those specifically dealing with freedom of
speech and of the press. For religious freedom -- the freedom to
believe and to practice strange and, it may be, foreign creeds --
has classically been one of the highest values of our society. See, e.g., Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S. 115 (1943); Jones v. City of Opelika, 319 U.
S. 103 (1943); Martin v. City of Struthers, 319 U. S. 141 (1943); Follett v. Town of McCormick, 321 U.
S. 573 (1944); Marsh v. Alabama, 326 U.
S. 501 , 326 U. S. 510 (1946). Even the most concentrated and fully articulated attack on
this high standard has seemingly admitted its validity in
principle, while Page 366 U. S. 613 deploring some incidental phraseology. See Kovacs v.
Cooper, 336 U. S. 77 , 336 U. S. 89 , 336 U. S. 95 -96
(1949) (concurring opinion); but cf. Ullmann v. United
States, 350 U. S. 422 (1956). The honored place of religious freedom in our
constitutional hierarchy, suggested long ago by the argument of
counsel in Permoli v. Municipality No. 1
of City of New Orleans , 3 How. 589, 600 [argument
of counsel -- omitted](1845), and foreshadowed by a prescient
footnote in United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 (1938), note 4, must now be taken to be settled. Or at least so it
appeared until today. For, in this case, the Court seems to say,
without so much as a deferential nod towards that high place which
we have accorded religious freedom in the past, that any
substantial state interest will justify encroachments on religious
practice, at least if those encroachments are cloaked in the guise
of some nonreligious public purpose.

															Admittedly, these laws do not compel overt affirmation of a
repugnant belief, as in Barnette, nor do they prohibit
outright any of appellants' religious practices, as did the federal
law upheld in Reynolds v. United States, 98 U. S.
145 (1878), cited by the Court. That is, the laws do not
say that appellants must work on Saturday. But their effect is that
appellants may not simultaneously practice their religion and their
trade without being hampered by a substantial competitive
disadvantage. Their effect is that no one may, at one and the same
time, be an Orthodox Jew and compete effectively with his
Sunday-observing fellow tradesmen. This clog upon the exercise of
religion, this state-imposed burden on Orthodox Judaism, has
exactly the same economic effect as a tax levied upon the sale of
religious literature. And yet such a tax, when applied in the form
of an excise or license fee, was held invalid in Follett v.
Town of McCormick, supra. All this the Court, as I read its
opinion, concedes.

															What, then, is the compelling state interest which impels the
Commonwealth of Pennsylvania to impede Page 366 U. S. 614 appellants' freedom of worship? What overbalancing need is so
weighty in the constitutional scale that it justifies this
substantial, though indirect, limitation of appellants' freedom? It
is not the desire to stamp out a practice deeply abhorred by
society, such as polygamy, as in Reynolds, for the custom
of resting one day a week is universally honored, as the Court has
amply shown. Nor is it the State's traditional protection of
children, as in Prince v. Massachusetts, 321 U.
S. 158 (1944), for appellants are reasoning and fully
autonomous adults. It is not even the interest in seeing that
everyone rests one day a week, for appellants' religion requires
that they take such a rest. It is the mere convenience of having
everyone rest on the same day. It is to defend this interest that
the Court holds that a State need not follow the alternative route
of granting an exemption for those who, in good faith, observe a
day of rest other than Sunday.

															It is true, I suppose, that the granting of such an exemption
would make Sundays a little noisier, and the task of police and
prosecutor a little more difficult. It is also true that a majority
-- 21 -- of the 34 States which have general Sunday regulations
have exemptions of this kind. [ Footnote
2/1 ] We are not told that those States are significantly
noisier, or that their police are significantly more burdened,
than Page 366 U. S. 615 Pennsylvania's. Even England, not under the compulsion of a
written constitution, but simply influenced by considerations of
fairness, has such an exemption for some activities. [ Footnote 2/2 ] The Court conjures up several
difficulties with such a system which seem to me more fanciful than
real. Non-Sunday observers might get an unfair advantage, it is
said. A similar contention against the draft exemption for
conscientious objectors (another example of the exemption
technique) was rejected with the observation that "its unsoundness
is too apparent to require" discussion. Selective Draft Law
Cases, 245 U. S. 366 , 245 U. S. 390 (1918). However widespread the complaint, it is legally baseless,
and the State's reliance upon it cannot withstand a First Amendment
claim. We are told that an official inquiry into the good faith
with which religious beliefs are held might be itself
unconstitutional. But this Court indicated otherwise in United
States v. Ballard, 322 U. S. 78 (1944). Such an inquiry is no more an infringement of religious
freedom than the requirement imposed by the Court itself in McGowan v. Maryland, ante, p. 366 U. S. 420 ,
that a plaintiff show that his good faith religious beliefs are
hampered before he acquires standing to attack a statute under the
Free Exercise Clause of the First Amendment. Finally, I find the
Court's mention of a problem under state antidiscrimination
statutes almost chimerical. Most such statutes provide that hiring
may be made on a religious basis if religion is a bona
fide occupational qualification. [ Footnote 2/3 ] It happens, moreover, that Pennsylvania's
statute has such a provision. [ Footnote
2/4 ]

															In fine, the Court, in my view, has exalted administrative
convenience to a constitutional level high enough to Page 366 U. S. 616 justify making one religion economically disadvantageous. The
Court would justify this result on the ground that the effect on
religion, though substantial, is indirect. The Court forgets, I
think, a warning uttered during the congressional discussion of the
First Amendment itself: " . . . the rights of conscience are, in
their nature, of peculiar delicacy, and will little bear the
gentlest touch of governmental hand. . . ." [ Footnote 2/5 ]

															I would reverse this judgment and remand for a trial of
appellants' allegations, limited to the free exercise of religion
issue.

															[ Footnote 2/1 ]

															Conn.Gen.Stat., 1958 rev., § 53-303; Fla.Laws 1959, c. 59-1650,
§ 2; Ill.Rev.Stat., 1959, c. 38, § 549; Burns' Ind.Ann.Stat., 1956
repl., § 10-4301; Kan.Gen.Stat.Ann., 1949, § 21-953; Ky.Rev.Stat.,
1959, § 436.160(2); Me.Rev.Stat., 1954, c. 134, § 44; Mass.Gen.Laws
Ann., 1958, c. 136, § 6; Mich.Stat.Ann., 1957 rev., §§ 18.855,
18.122, 9.2702, Comp.Laws Supp.1956, § 435.252; Comp.Laws 1948, §§
338.682, 435.7; Mo.Rev.Stat., 1959, § 563.700; Neb.Rev.Stat., 1943,
§ 28-940; N.J.Stat.Ann., 1953, § 2A:171-4; McKinney's N.Y.Laws,
Penal Law, § 2144; N.D.Rev.Code, 1943, § 12-2117; NDCC 12-21-17;
Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958,
Tit. 21, § 909; R.I.Gen.Laws, 1956, § 11-40-4; S.D.Code, 1939, §
13.1710; Vernon's Ann.Tex.Pen.Code art. 284; Va.Code, 1950, §
18.1-359; Wash.Rev.Code, 1951, § 9.76.020; W.Va.Code Ann., 1955, c.
61, Art. 8, § 6073. Cf. Wis.Stat.Ann., 1958, § 301.33.

															[ Footnote 2/2 ] E.g., Shops Act, 1950, 14 Geo. VI, c. 28, § 53.

															[ Footnote 2/3 ] E.g., Mass.Gen.Laws Ann., 1958, c. 151B, § 4, par.
1.

															[ Footnote 2/4 ]

															43 Purdon's Pa.Stat.Ann. (1960 Cum.Supp.) § 955.

															[ Footnote 2/5 ]

															I Annals of Cong. 730 (remarks of Representative Daniel Carroll
of Maryland, August 15, 1789).

															MR. JUSTICE STEWART, dissenting.

															I agree with substantially all that MR. JUSTICE BRENNAN has
written. Pennsylvania has passed a law which compels an Orthodox
Jew to choose between his religious faith and his economic
survival. That is a cruel choice. It is a choice which I think no
State can constitutionally demand. For me, this is not something
that can be swept under the rug and forgotten in the interest of
enforced Sunday togetherness. I think the impact of this law upon
these appellants grossly violates their constitutional right to the
free exercise of their religion.

Summary: In Braunfeld v. Brown, the Supreme Court upheld a Pennsylvania criminal statute that prohibited the retail sale of certain commodities on Sundays. The appellants, merchants in Philadelphia who observed the Orthodox Jewish Sabbath from Friday nightfall to Saturday nightfall, argued that the statute interfered with their free exercise of religion by imposing economic disadvantages. The Court, however, ruled that the statute did not violate the Equal Protection Clause or constitute a law respecting an establishment of religion. While acknowledging the economic burden on the appellants, the Court found that the statute did not prohibit the free exercise of their religion within the meaning of the First Amendment. This case highlights the delicate balance between religious freedom and state interests, with the Court prioritizing administrative convenience over the religious practices of Orthodox Jews.


U.S. Supreme Court Torcaso v. Watkins, 367
U.S. 488 (1961) Torcaso v. Watkins No. 373 Argued April 24, 1961 Decided June 19, 1961 367
U.S. 488 APPEAL FOM THE COURT OF APPEALS OF
MARYLAND Syllabus Appellant was appointed by the Governor of Maryland to the
office of Notary Public, but he was denied a commission because he
would not declare his belief in God, as required by the Maryland
Constitution. Claiming that this requirement violated his rights
under the First and Fourteenth Amendments, he sued in a state court
to compel issuance of his commission, but relief was denied. The
State Court of Appeals affirmed, holding that the state
constitutional provision is self-executing, without need for
implementing legislation, and requires declaration of a belief in
God as a qualification for office. Held: This Maryland
test for public office cannot be enforced against appellant,
because it unconstitutionally invades his freedom of belief and
religion guaranteed by the First Amendment and protected by the
Fourteenth Amendment from infringement by the States. Pp. 367 U. S.
489 -496.

															223 Md. 49, 162 A.2d 438, reversed. Page 367 U. S. 489 MR. JUSTICE BLACK delivered the opinion of the Court.

															Article 37 of the Declaration of Rights of the Maryland
Constitution provides:

															"[N]o religious test ought ever to be required as a
qualification for any office of profit or trust in this State,
other than a declaration of belief in the existence of God. . .
."

															The appellant Torcaso was appointed to the office of Notary
Public by the Governor of Maryland, but was refused a commission to
serve because he would not declare his belief in God. He then
brought this action in a Maryland Circuit Court to compel issuance
of his commission, charging that the State's requirement that he
declare this belief violated "the First and Fourteenth Amendments
to the Constitution of the United States. . . ." [ Footnote 1 ] The Circuit Court rejected these
federal constitutional contentions, and the highest court of the
State, the Court of Appeals, affirmed, [ Footnote 2 ] holding that the state constitutional
provision is self-executing, and requires declaration of belief in
God as a qualification for office without need for implementing
legislation. The case is therefore properly here on appeal under 28
U.S.C. § 1257(2).

															There is, and can be, no dispute about the purpose or effect of
the Maryland Declaration of Rights requirement before us -- it sets
up a religious test which was designed to, Page 367 U. S. 490 and, if valid, does, bar every person who refuses to declare a
belief in God from holding a public "office of profit or trust" in
Maryland. The power and authority of the State of Maryland thus is
put on the side of one particular sort of believers -- those who
are willing to say they believe in "the existence of God." It is
true that there is much historical precedent for such laws. Indeed,
it was largely to escape religious test oaths and declarations that
a great many of the early colonists left Europe and came here
hoping to worship in their own way. It soon developed, however,
that many of those who had fled to escape religious test oaths
turned out to be perfectly willing, when they had the power to do
so, to force dissenters from their faith to take test oaths in
conformity with that faith. This brought on a host of laws in the
New Colonies imposing burdens and disabilities of various kinds
upon varied beliefs depending largely upon what group happened to
be politically strong enough to legislate in favor of its own
beliefs. The effect of all this was the formal or practical
"establishment" of particular religious faiths in most of the
Colonies, with consequent burdens imposed on the free exercise of
the faiths of nonfavored believers. [ Footnote 3 ]

															There were, however, wise and farseeing men in the Colonies --
too many to mention -- who spoke out against test oaths and all the
philosophy of intolerance behind them. One of these, it so happens,
was George Calvert (the first Lord Baltimore), who took a most
important part in the original establishment of the Colony of
Maryland. He was a Catholic and had, for this reason, felt
compelled by his conscience to refuse to take the Oath of Supremacy
in England at the cost of resigning from high governmental office.
He again refused to take that oath when it was demanded by the
Council of the Colony of Page 367 U. S. 491 Virginia, and, as a result, he was denied settlement in that
Colony. [ Footnote 4 ] A recent
historian of the early period of Maryland's life has said that it
was Calvert's hope and purpose to establish in Maryland a colonial
government free from the religious persecutions he had known -- one
"securely beyond the reach of oaths. . . ." [ Footnote 5 ]

															When our Constitution was adopted, the desire to put the people
"securely beyond the reach" of religious test oaths brought about
the inclusion in Article VI of that document of a provision that
"no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States." Article VI
supports the accuracy of our observation in Girouard v. United
States, 328 U. S. 61 , 328 U. S. 69 ,
that "[t]he test oath is abhorrent to our tradition." Not
satisfied, however, with Article VI and other guarantees in the
original Constitution, the First Congress proposed and the States
very shortly thereafter Page 367 U. S. 492 adopted our Bill of Rights, including the First Amendment.
[ Footnote 6 ] That Amendment
broke new constitutional ground in the protection it sought to
afford to freedom of religion, speech, press, petition and
assembly. Since prior cases in this Court have thoroughly explored
and documented the history behind the First Amendment, the reasons
for it, and the scope of the religious freedom it protects, we need
not cover that ground again. [ Footnote 7 ] What was said in our prior cases we think
controls our decision here.

															In Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S.
303 -304, we 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 a incompetent as Congress to enact such
laws. . . . 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."

															Later, we decided Everson v. Board of Education, 330 U. S. 1 , and
said this at pages 330 U. S. 15 and 330 U. S. 16 :

															"The 'establishment of religion' clause of the First Amendment
means at least this: neither a state nor Page 367 U. S. 493 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. Neither can force nor influence a person to
go to or to remain away from church against his will or force him
to profess a belief or disbelief in any religion. No person can be
punished for entertaining or professing religious beliefs or
disbeliefs, for church attendance or nonattendance. No tax in any
amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or
whatever form they may adopt to teach or practice religion. Neither
a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or
groups, and vice versa. In the words of Jefferson, the clause
against establishment of religion by law was intended to erect 'a
wall of separation between church and State.'"

															While there were strong dissents in the Everson case,
they did not challenge the Court's interpretation of the First
Amendment's coverage as being too broad, but thought the Court was
applying that interpretation too narrowly to the facts of that
case. Not long afterward, in Illinois ex rel. McCollum v. Board
of Education, 333 U. S. 203 , we
were urged to repudiate as dicta the above-quoted Everson interpretation of the scope of the First Amendment's coverage. We
declined to do this, but instead strongly reaffirmed what had been
said in Everson, calling attention to the fact that both
the majority and the minority in Everson had agreed on the
principles declared in this part of the Everson opinion.
And a concurring opinion in McCollum, written by Mr.
Justice Frankfurter and joined by the other Everson dissenters, said this:

															"We are all agreed that the First and Fourteenth Amendments have
a secular reach far more penetrating Page 367 U. S. 494 in the conduct of Government than merely to forbid an
'established church.' . . . We renew our conviction that"

															"we have staked the very existence of our country on the faith
that complete separation between the state and religion is best for
the state and best for religion. [ Footnote 8 ]"

															The Maryland Court of Appeals thought, and it is argued here,
that this Court's later holding and opinion in Zorach v.
Clauson, 343 U. S. 306 , had
in part repudiated the statement in the Everson opinion
quoted above and previously reaffirmed in McCollum. But
the Court's opinion in Zorach specifically stated: "We
follow the McCollum case." 343 U.S. at 343 U. S. 315 .
Nothing decided or written in Zorach lends support to the
idea that the Court there intended to open up the way for
government, state or federal, to restore the historically and
constitutionally discredited policy of probing religious beliefs by
test oaths or limiting public offices to persons who have, or
perhaps more properly profess to have, a belief in some particular
kind of religious concept. [ Footnote 9 ] Page 367 U. S. 495 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, [ Footnote 10 ] and neither can aid those religions based on
a belief in the existence of God as against those religions founded
on different beliefs. [ Footnote
11 ]

															In upholding the State's religious test for public office, the
highest court of Maryland said:

															"The petitioner is not compelled to believe or disbelieve, under
threat of punishment or other compulsion. True, unless he makes the
declaration of belief, he cannot hold public office in Maryland,
but he is not compelled to hold office."

															The fact, however, that a person is not compelled to hold public
office cannot possibly be an excuse for barring him Page 367 U. S. 496 from office by state-imposed criteria forbidden by the
Constitution. This was settled by our holding in Wieman v.
Updegraff, 344 U. S. 183 . We
there pointed out that, whether or not "an abstract right to public
employment exists," Congress could not pass a law providing " . . .
that no federal employee shall attend Mass or take any active part
in missionary work." [ Footnote
12 ]

															This Maryland religious test for public office
unconstitutionally invades the appellant's freedom of belief and
religion, and therefore cannot be enforced against him.

															The judgment of the Court of Appeals of Maryland is accordingly
reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion. Reversed and remanded. MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN concur in the
result.

															[ Footnote 1 ]

															Appellant also claimed that the State's test oath requirement
violates the provision of Art. VI of the Federal Constitution that
"no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States." Because we are
reversing the judgment on other grounds, we find it unnecessary to
consider appellant's contention that this provision applies to
state as well as federal offices.

															[ Footnote 2 ]

															223 Md. 49, 162 A.2d 438. Appellant's alternative contention
that this test violates the Maryland Constitution also was rejected
by the state courts.

															[ Footnote 3 ] See, e.g., I Stokes, Church and State in the United
States, 358-446. See also cases cited, note 7 infra. [ Footnote 4 ]

															The letter from the Virginia Council to the King's Privy Council
is quoted in Hanley, Their Rights and Liberties (Newman Press
1959), 65, as follows:

															"According to the instructions from your Lordship and the usual
course held in this place, we tendered the oaths of supremacy and
allegiance to his Lordship[;] [Baltimore] and some of his
followers, who making profession of the Romish Religion, utterly
refused to take the same. . . . His Lordship then offered to take
this oath, a copy whereof is included . . . , but we could not
imagine that so much latitude was left for us to decline from the
prescribed form, so strictly exacted and so well justified and
defended by the pen of our late sovereign, Lord King James of happy
memory. . . . Among the many blessings and favors for which we are
bound to bless God . . . there is none whereby it hath been made
more happy than in the freedom of our Religion . . . and that no
papists have been suffered to settle their abode amongst us. . .
."

															Of course, this was long before Madison's great Memorial and
Remonstrance and the enactment of the famous Virginia Bill for
Religious Liberty, discussed in our opinion in Everson v. Board
of Education, 330 U. S. 1 , 330 U. S.
11 -13.

															[ Footnote 5 ]

															Hanley, op. cit., supra, p. 65.

															[ Footnote 6 ]

															"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances."

															[ Footnote 7 ] See, e.g., the opinions of the Court and also the
concurring and dissenting opinions in Reynolds v. United
States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 ; Cantwell v. Connecticut, 310 U. S. 296 ; West Virginia State Bd. of Education v. Barnette, 319 U. S. 624 ; Fowler v. Rhode Island, 345 U. S. 67 ; Everson v. Board of Education, 330 U. S.
1 ; Illinois ex rel. McCollum v. Board of
Education, 333 U. S. 203 ; McGowan v. Maryland, 366 U. S. 420 .

															[ Footnote 8 ]

															333 U.S. at 333 U. S. 213 , 333 U. S. 232 .
Later, in Zorach v. Clauson, 343 U.
S. 306 , 343 U. S. 322 ,
Mr. Justice Frankfurter stated in dissent that

															"[t]he result in the McCollum case . . . was based on
principles that received unanimous acceptance by this Court,
barring only a single vote."

															[ Footnote 9 ]

															In one of his famous letters of "a Landholder," published in
December, 1787, Oliver Ellsworth, a member of the Federal
Constitutional Convention and later Chief Justice of this Court,
included among his strong arguments against religious test oaths
the following statement:

															"In short, test laws are utterly ineffectual; they are no
security at all, because men of loose principles will, by an
external compliance, evade them. If they exclude any persons, it
will be honest men, men of principle, who will rather suffer an
injury than act contrary to the dictates of their consciences. . .
."

															Quoted in Ford, Essays on the Constitution of the United States
170. See also 4 Elliott, Debates in the Several State
Conventions on the Adoption of the Federal Constitution 193.

															[ Footnote 10 ]

															In discussing Article VI in the debate of the North Carolina
Convention on the adoption of the Federal Constitution, James
Iredell, later a Justice of this Court, said:

															". . . [i]t is objected that the people of America may, perhaps,
choose representatives who have no religion at all, and that pagans
and Mahometans may be admitted into offices. But how is it possible
to exclude any set of men without taking away that principle of
religious freedom which we ourselves so warmly contend for?"

															And another delegate pointed out that Article VI

															"leaves religion on the solid foundation of its own inherent
validity, without any connection with temporal authority, and no
kind of oppression can take place."

															4 Elliot, op. cit., supra, at 194, 200.

															[ Footnote 11 ]

															Among religions in this country which do not teach what would
generally be considered a belief in the existence of God are
Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See 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; II Encyclopaedia of the Social Sciences
293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id. at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton),
120-138, 254-313; 1961 World Almanac 695, 712; Year Book of
American Churches for 1961, at 29, 47.

															[ Footnote 12 ]

															344 U.S. at 344 U. S.
191 -192, quoting from United Public Workers v.
Mitchell, 330 U. S. 75 , 330 U. S.
100 .

Summary:
The Supreme Court case Torcaso v. Watkins (1961) concerned a Maryland state requirement that public officials declare a belief in God, as outlined in the state's Declaration of Rights. The appellant, Torcaso, was denied a commission as a Notary Public because he refused to declare this belief. He challenged this requirement in court, arguing that it violated his rights under the First and Fourteenth Amendments.

The Court held that the Maryland requirement was indeed unconstitutional, as it infringed on Torcaso's freedom of belief and religion, protected by the First Amendment and applied to state governments through the Fourteenth Amendment. The Court emphasized that such religious tests for public office are invalid, regardless of historical precedent, as they favor one group of believers over others and exclude those with differing religious beliefs.

This case reaffirmed the separation of church and state, and ensured that individuals cannot be compelled to profess a specific religious belief to hold public office.