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Abington Township School District v. Schempp:

The Day God Was Kicked Out of School

Cale L. Corbett

Dr. Lynn W. Turner Prize
Phi Alpha Theta
June 26, 1995

In February 1963, the Supreme Court of the United States heard a First Amendment case which would forever change the way Americans viewed the Court and the value given religion by the highest magistrate in the land. In fact, this case is vilified as one that "kicked God and prayer out of the schools." [1] With its watershed decision in June of that year, the Court found for an Abington Township Unitarian who pursued litigation to purge a 1949 Pennsylvania state law providing for mandatory devotional Bible reading in public schools statewide. [2]

After losing at the federal district court level, Pennsylvania lawmakers added a provision to the statute allowing students, with parental consent, to opt out of the religious exercises in hopes of placating Edward Schempp. Not satisfied, Mr. Schempp took the case to court again, charging the alteration did not change the unconstitutional nature of a measure which promoted Christianity at state expense. Again the lower court found for Schempp. Consequently, Abington Township School District appealed to the Supreme Court. Consolidated with a similar Maryland case launched by renowned atheist Madalyn Murray, the Supreme Court handed down a controversial 8-1 decision in favor of Schempp (and Murray). [3]

Although certainly not the first case involving religious expression to reach the Supreme Court, Abington Township School District v. Schempp was the impetus of perhaps the most vituperative debate regarding religion and its place in our school system up to that time. This case raised thorny constitutional and social issues like no other case preceding it. [4]

In jurisprudence spanning the previous two decades, the Supreme Court increasingly applied greater portions of the Bill of Rights to the states in light of the Fourteenth Amendment's Due Process Clause. Seminal church-state cases like Cantwell v. Connecticut, Everson v. Board of Education and McCollum v. Board of Education comprised important precedents drawn on by the majority in reaching a decision in Abington v. Schempp. [5]

Schempp's very questioning of prayer in school illuminated the metamorphosis society was undergoing. Although many must have disagreed with local school districts conducting organized prayers and Bible readings, a surprisingly small number expressed objection in an obtrusive manner until well into the twentieth century. Most were convinced, or at least ignorant of information to the contrary, that the United States was a nation founded on Christian principles. Yet, as early as 1890, many states were rolling back mandates of state sponsored devotional exercises in the classroom. [6]

Like four other states, Pennsylvania introduced a statute compelling school districts to perform Bible readings in the mornings before class. Twenty-five states had laws allowing "optional" Bible reading, with the remainder having no laws supporting or rejecting Bible reading. In eleven of those states with laws supportive of Bible reading or state-sponsored prayer, courts had declared them unconstitutional. [7]

In the case of Pennsylvania's treatment of the issue, at least ten Bible verses were to be read daily by teachers or students in each public school classroom statewide. Any translation or version was appropriate, yet Abington Township consistently utilized the King James Version. Joint recitation of the Lord's Prayer followed the reading in that district's public schools. A particularly authoritarian facet of the law was the provision for termination of any teacher refusing to conduct or participate in the mandated Bible reading.[8] For Maryland, statutes provided for the daily reading of a chapter from the Bible and recitation of the Lord's Prayer in that state's tax-funded schools. [9]

No matter the impact this case would have on national church-state relations in the future and the sensationalism attached to it by both sides of the debate, the issues raised in Abington v. Schempp were of paramount importance to those involved. It is evident from the suit he launched that Schempp was truly concerned about the spiritual and social impact of state-supported Bible reading and prayer on his children. For a Unitarian, the "religious doctrines purveyed by a literal reading of the Bible [were at the very least] contrary to [his] religious beliefs. . ." [10] Evidently Mr. Schempp was concerned as to the amount of control the school system was exerting over the religious aspect of the children's lives.

The case would bounce from the district court level to the Supreme Court and back again between 1963 and the time when Mr. Schempp originally brought suit in 1958. [11] In its first iteration, Schempp's complaint alleged the state-sponsored Bible reading and accompanying recitation of the Lord's Prayer were unconstitutional establishments of religion which prohibited the free exercise thereof for both him and his children. [12]

At the time, Edward's son, Ellory Schempp was still a student in the school system. In the original litigation, he testified that he did not believe in the divinity of Jesus Christ, his immaculate conception, or the Christian doctrine of the Trinity. However, he affirmed that such ideas contrary to his own beliefs were presented to him during his years of attendance at Abington High School. Further, the boy was subject to disciplinary action for his refusal to stand at attention during the recitation of the Lord's Prayer and his request to be excused during the exercise was summarily denied. [13]

Also of value to the plaintiff in the first trial was the testimony of Rabbi Dr. Solomon Grayzel who outlined the harm that could come from sectarian presentation of religious works in a school environment. [14] As an example of the implicit sectarian nature of Pennsylvania's prescribed biblical reading, he pointed out that the New Testament's readily apparent anti-Semitism would not bring any real psychological harm to Jewish children if the context of that document was explained. However, if read without comment or question as it was in Pennsylvania schools, Dr. Grayzel testified to the grievous psychological harm he had seen the New Testament produce in Jewish children during similar applications in other venues. [15]

His testimony produced two main points. First, it was safe to assume that if Jewish children could be offended by Bible reading sanctioned by public schools, it was equally safe to suggest that Schempp's children could be detrimentally affected as well. Second, to a Unitarian rejecting the doctrine of the Trinity and the divinity of Jesus, reading of the New Testament in particular would seem practically blasphemous. This effectively dismissed the defense's contention that the Bible was a common source of morality for all students.

Assertions of the defense were "diametrically opposite" to those of the plaintiffs. For instance, the defense held that "in substance, . . . reading without comment of ten verses of the Holy Bible at the opening of each school day does not effect, favor or establish a religion or prohibit the free exercise thereof, that freedom of religion or of conscience does not include a right to practice one's beliefs or disbeliefs . . . by preventing others from hearing it read in public schools. Further, they contended that such reading was an invaluable aid in the development of the minds and morals of school children that the State had a constitutional right to employ." [16]

In defense of forced recitation of the Lord's Prayer, it was felt that such practice did not establish preference for religion or violate the "religious conscience of pupils or parents." The defense also stated that children were free to interpret the bible readings any way they saw fit, if at all, due to the absence of comment. Finally, the defense testified that the plaintiffs were in no way pressed into compulsion in respect to the religious observances, and failed to show any deprivation of constitutional rights. [17]

Among those appearing in witness for the school district during the first round of litigation was Dr. Luther Weigle, an expert in the origins of the New Testament, who testified that the Bible was non-sectarian. In cross-examination, however, Dr. Weigle bolstered Edward Schempp's case when he was forced to concede that the Bible could only be construed as such when viewed from within Christian faiths and that the New Testament "conveyed the message of Christians." [18]

In its decision, the United States District Court of Pennsylvania outlined several salient principles worth further examination. Foremost was the refutation of the defense's implicit claim that the Bible was not an inherently religious work:

Inasmuch as the verses of the Bible address themselves to, or are premised upon a recognition of God, the Bible is essentially a religious work, . . . and to refuse to admit its essential character as a religious document would seem to us to be unrealistic. If study of the Bible as an artistic work, a treasury of moral truths, or historical text can be separated from the espousal of doctrinal matters and religiousness, we should find no objection. The daily reading of the Bible . . . required by the legislative fiat .. . buttressed with the authority of the State and, more importantly to the children, backed with the authority of their teachers, can hardly do less than inculcate . . . various religious doctrines in childish minds. Thus, the practice required by the statute amounts to religious instruction [and] . . . it makes no difference that a religious sense of religion may not be instilled. [19]

Secondly, the bench took to task the defense's assertion that children were not forced to participate in the morning religious exercises. Immediately evident to the court was the difference in attitude demanded of the students when the Bible was being read and the Lord's Prayer recited from when normal classroom instruction took place. Additionally, children could not ask to be excused from the proceedings, and faced disciplinary action if they did engage in any real protest of the exercises. Further, counsel for the plaintiff pointed out that the defense ignored the reality of compulsory school attendance required by Pennsylvania state law. This mandatory school attendance placed the students "[directly] in the path of compulsion." [20] The bench was equally unconvinced of any true freedom enjoyed by the children to interpret the Bible readings as they saw fit. Citing the testimony of Dr. Grayzel and the Schempps, the court noted that a broad "spectrum of meanings . . . beginning with literal acceptance. . . [to] vague philosophical generalities condemned by fundamentalists" could result. [21]

In the opinion delivered, the Pennsylvania District Court found the state law sanctioning the reading of the Bible in public schools to be "within the proscription of the First Amendment." Due to the interference with the rights of parents to religiously instruct their children (if at all) and the religious character of the morning exercises in Abington Township schools, the court declared both the statute and the attending practices unconstitutional under both the Establishment and Free Exercise Clauses of the First Amendment as applied to the states by the Fourteenth Amendment. [22]

As would be expected, Abington Township appealed to the Supreme Court which remanded the case back to district court levels for further proceedings. [23] In the second round of litigation, the school district countered with an amendment to the statute. The modification allowed students to be excused from participation in the Bible reading and prayer, and repealed the mandate for dismissal of teachers who also refused to participate. [24]

During the school district's appeal, Edward Schempp testified that after careful consideration, he decided not to have his children excused from attendance at the morning ceremonies. He feared his children would be seen as "odd balls" by their teachers and classmates. In addition, standing outside one's homeroom carried with it a stigma of punishment for bad behavior. [25]

The District Court did not take the time to review the evidence, nor repeat the facts from the first case. Thus, the second round of litigation was a great deal shorter than the first. Instead, the justices examined the case considering the school district's amendment allowing students the option of non-participation. With legal tactics reminiscent of Hollywood, the defense again attempted to deny the harm found to be imparted upon the Schempps by the Bible reading statute. In addition, the defense called into question the very jurisdiction the federal level court claimed over the case, arguing as it had in the first case, that this was a state issue only. [26]

The court was not moved to overturn its previous decision. They again held that the statute, even as amended, was unconstitutional and violative of the First Amendment, finding it no more defensible than before its amendment. [27]

Thus, after years of trial, the case Edward Schempp had actuated against the school district of Abington Township made its way to the nation's highest judicial body. On the school district's appeal of the tribunal's second ruling, the case would be heard by the Supreme Court as Abington v. Schempp . The Supreme Court apparently agreed to hear the case for one compelling reason: to settle once and for all the persistent and vigorous protests resulting from its previous decision in Engel v. Vitale regarding religion in schools. [28]

The Supreme Court upheld the District Court's decision and found the Pennsylvania prayer statute unconstitutional by virtue of the facts in the case, as well as the clear line of precedent established by the Court. In writing the opinion of the Court, Justice Thomas Clark stated, "This Court has decisively settled that the First Amendment's mandate [in the Establishment Clause] has been made wholly applicable to the States by the Fourteenth Amendment . . . in a series of cases since Cantwell." [29]

What was unexpected, however, were the ideas expressed in the second portion of Justice Clark's opinion written for the majority. The Court's recognition of religious ideals as valuable to our culture in that opinion are generally not cited by either side of the church-state debate, either by ignorance or purposeful omission, when discussing the case and the impact it had on the nation. His opening thoughts explicitly spelled out that view in past jurisprudence with cases similar to Abington v. Schempp .

It is true that religion has been closely identified with our history and government. As we said in Engel v. Vitale . . . , "The history of man is inseparable from the history of religion. And . . . since the beginning of that history many people have devoutly believed that [m]ore things are wrought by prayer than this world dreams of and we are a religious people whose institutions presuppose a Supreme Being." . . . Indeed, only last year an official survey of the country indicated that 64% of our people have church membership. . . while less than 3% profess no religion whatever . . . therefore, . . . as in the beginning, our national life reflects a religious people. . . . In addition, it might be well said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. This is not to say, however, that religion has been so identified with out history and government that religious freedom is not likewise as strongly embedded in our public and private [lives]. This freedom to worship [as we please, or not at all, is] indispensable in a country whose people come from the four quarters of the earth and brought with them a diversity of religious opinion. [30]

Even so, Clark continued that the Court was of the feeling that no matter the religious nature of the citizenry, the government at all levels, as required by the Constitution, must remain neutral in matters of religion "while protecting all, prefer[ring] none, and disparag[ing] none." [31] The Court had clearly rejected the contention by many that the Establishment Clause forbade only governmental preference of one faith over another. [32]

Citing Justice Hugo Black in Torcaso v. Watkins, Justice Clark added, "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 non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." [33] Such prohibited behavior was that self-evident in the Pennsylvania law requiring Bible reading (and allowing recitation of the Lord's Prayer) in its public schools. The Court recognized the value of such ideal neutrality from lessons of history when government and religion were either fully fused or cooperative with one another and religious liberty was nonexistent or seriously curtailed. [34]

Justice Brennan filed the only lengthy and truly historically significant concurrence in this case. The esteemed Justice took seventy-three pages to elaborate his ideas about what the Framers intended in the formation of the First and Fourteenth Amendments, gauge the value of religion in our culture, review past precedents, and suggest a course for future church-state cases. Scholars have noted that his concurrence suggested "a willingness to engage in historical analysis" on the part of the Court. [35] He professed to be aware of the "ambiguities in the historical record" and felt a modern-day interpretation of the First Amendment was warranted.36 In defense of that approach, Brennan stated:

Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord's Prayer in . . . public schools, .. . our use of the history . . . must limit itself to broad purposes, not specific practices. . . . [T]he Baltimore and Abington schools offend the First Amendment because they sufficiently threaten in our day those substantive evils the fear of which called forth the Establishment Clause. . . . [O]ur interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society. A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected. [37]

In answer to critics of a broad interpretation of the prohibitions against government in the realm of religion, Brennan said, ".. . [N]othing in the text of the Establishment Clause supports the view that the prevention of the setting up of an official church was meant to be the full extent of the prohibitions against official involvements in religion." [38]

In the third section of his exhaustive concurrence, Justice Brennan charted the course that led to the incorporation of the First Amendment's religion clauses by way of answering the charge of Abington Township's counsel that Pennsylvania's Bible reading statute was a state issue, outside the purvue of the federal court system, including that of the Supreme Court. [39] He labeled the daily recitals of the Lord's Prayer and reading of the Bible as "quite [clear] breaches of the command of the Establishment Clause." [40] He noted the long history of such practices, even before the "founding of our Republic." Additionally, he did not neglect to mention that most of those who demanded reading of the Bible and prayer in schools were hoping to serve "broader goals than compelling formal worship of God or fostering church attendance." They looked also to foster "the noblest principles of virtue, morality, patriotism, and good order." [41]

Justice Brennan took great pains to also show that many states, like South Dakota, New Hampshire, Wisconsin, Ohio and Massachusetts had already enacted and revoked laws similar to Pennsylvania's by the first half of the twentieth century. In addition, many political leaders including attorneys general and presidents like Ulysses S. Grant and Theodore Roosevelt insisted that "matters of religion be left to family altars, churches and private schools" and "[It] is not our business to have the Protestant Bible or the Catholic Vulgate or the Talmud read in [public] schools." [42] He added that the amendment allowing for excusal from participation did not have any relevance to the question of establishment of religion, since it was found that the practices were essentially religious and made use of public school buildings during school days. [43]

One final point worthy of examination in Brennan's concurrence was his recognition of the plurality of religious thought in the nation as basis enough for restriction of church and state relations. He cited this lack of appreciation of that pluralism as the "basic flaw" of Pennsylvania's Bible reading statute and Abington Township's defense of it:

There are persons in every community--often deeply devout--to whom any version of the Judaeo-Christian Bible is offensive. There are others whose reverence for the Holy Scriptures demands private study or reflection and to whom public reading or recitation is sacrilegious.
. . . To such persons it is not the fact of using the Bible in the public schools, nor the content of any particular version, that is offensive, but the manner in which it is used. [44]

In a rather vehement tone, Justice Potter Stewart filed the only dissent in the case. [45]

In it, he was critical not only of the lower court opinions, but also the decision the Supreme Court had reached regarding them. It is clear he wished to remand the case to lower courts for further proceedings. He immediately declared the cases "so fundamentally deficient as to make impossible an informed or responsible determination of the constitutional issues presented, [thus it is difficult to] say that the Establishment Clauses has been violated." [46] As to the intent and scope of the First Amendment and Fourteenth Amendments (and their Establishment Clauses):

It is, I think, a fallacious oversimplification to regard the [religion clauses] as establishing a single constitutional standard of "separation of church and state," which can be applied in every case to delineate the required boundaries between government and religion. . . . As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government . . . to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments. . . . So matters stood until the adoption of the Fourteenth Amendment, or more accurately, until this Court's decision in Cantwell. [47]

He stated his agreement with the doctrine of the Fourteenth Amendment's embrace and application of the Bill of Rights, but pointed out the irony of such an amendment "designed to leave the States free to go their own way should now have become a restriction upon their autonomy." [48] Other critics of the Court's findings in Abington v. Schempp often quote the following excerpt from Justice Stewart's opinion:

. . . If religious exercises are held to be an impermissible activity in schools, religion is placed in an artificial and state-created disadvantage. . . . And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at least, as governmental support of the beliefs of those who think that religious exercises should be conducted only in private. [49]

Just as there was a clear spectrum of opinion in the Court on these cases, so too was the public divided in reaction to the Court's decision. Newspapers were no exception. The Washington Evening Star was indeed rather critical of the Court's decision. Disparaging the decision reached by Clark and the majority, and all but granting sainthood to the lone dissenter Stewart, that newspaper declared that "God and religion have all but been driven from the public schools. What remains? Will the baccalaureate service and Christmas carols be the next to go? Don't bet against it." [50] In contrast, the New York Times was more accepting of the Court's ruling. Significant portions of the opinions were printed and no real comment supportive or critical. [51]

As would be expected, the views of various Christian entities on the decision of the Court were equally diverse. As an example of the conservative Protestant perspective, the Reverend Dr. Billy Graham said, "In my opinion . . . the Supreme Court . . . is wrong. . . . Eighty percent of the American people want Bible reading and prayer in the schools. Why should a majority be so severely penalized . . .?" [52] The mainline denominations, with the exception of Catholics, registered less critical opinions of the verdict, in fact seeing it as a boon to religious freedom by its very limiting of governmental authority in the sphere of public schools. [53]

The reaction from Congress could best be described as strident. Almost overnight, bills designed to overturn the decision by amending the Constitution were proposed. By April 1964, over one hundred-fifty such amendments had been proposed. [54] Calls continue after some thirty-two years, from mostly conservative Republican and Religious Right activists, for an amendment to the Constitution to allow students to pray or read the Bible. This springs from the erroneous belief, on the part of school districts, parents, and concerned religious groups, that Abington v. Schempp prohibited such activity, when in reality it merely restrained the government from interfering either to promote or prohibit such activity. [55]

The need for such an amendment is clear, say its proponents, as evidenced by the several hundred percent rise in incidents of campus crime, unwanted pregnancies, suicides, murder and lower aptitude test scores seen since the "banning of prayer and Bible reading" in the 1960s. [56] Critics of this view label it as "simplistic and ignorant of complex socio-economic realities" that have surfaced since the early 1960s. [57]

Regardless of the social debate, Abington v. Schempp was found to be invaluable as precedent for similar cases like Board of Education v. Allen and Lemon v. Kurtzman in the decades that followed. In fact, the well-known, and oft-used, three part Lemon test, had its basis in the jurisprudence of Abington v. Schempp. In it, a given church-state law is subjected to three criteria: sponsorship, financial support, and active involvement of the government in religious activity. Failure in any one of those realms allow the measure to be declared unconstitutional. [58]

It is unclear how this decision, and those based in whole or part upon it, will fare with the decidedly conservative shift of membership in the Supreme Court seen in the past decade. Although the Court was in the past, and currently is, supportive of the doctrine outlined in Abington v. Schempp, the remarkable rise of conservative (and religious) thought witnessed in 1994, may spell the end of support for the Lemon test and Abington v. Schempp-style church-state separation. [59]


Notes

[1] Peter McWilliams, Ain't Nobody's Business If You Do: The Absurdity of Consensual Crimes in a Free Society (Los Angeles: Prelude Press, 1993), 170.

[2] 177 F. Supp 398 (1959). The statute read as follows: "At least ten verses from the Holy Bible shall be read, or caused to be read, without comment, at the opening of each public school on each school day, by the teacher in charge . . . If any teacher, whose duty it shall be to read the Holy Bible, or cause it to be read, shall fail or omit so to do, said school teacher shall, upon charges preferred for each failure or omission, and proof of the same, before the board of school directors of the school district, be discharged."

[3] Robert Boston, Why the Religious Right Is Wrong: About Separation of Church and State (Buffalo: Prometheus Books, 1993), 106.

[4] Ibid., 106. In recruitment efforts for their atheist organizations, supporters of Madalyn Murray (O'Hair) insist to this day that she single-handedly got Bible reading and prayer kicked out of the schools. Surprisingly, although false and misleading, many Christians and non-believers bought into her embellished claim.

[5] 374 U.S. 215 (1963).

[6] Boston, Why the Religious Right Is Wrong, 105.

[7] Ibid., 101.

[8] 177 F. Supp 399.

[9] 374 U.S. 211. Note that Maryland's law differed from that of Pennsylvania in that it required recitation of the Lord's Prayer in conjunction with reading of the Bible.

[10] Ibid., 208.

[11] 364 U.S. 298 (1960).

[12] 177 F. Supp 399. The recitation of the Lord's Prayer was a peculiar addition of the Abington Township School District and was not called for in the Pennsylvania statute. Edward Schempp clearly intended to show that the practices protested in this case not only directly harmed his children, but many other children in the school district (and arguably the state) as well.

[13] Ibid., 401. The boy's testimony would be instrumental in refuting the defense's argument that no harm had befallen the Schempps or other children as a direct result of the statute.

[14] Ibid., 401. Dr. Grayzel was a graduate from the City College of New York and Columbia University. He received a Doctorate of Philosophy from Dropsie College of Philadelphia, an institute of rabbinical, Semitic, and Hebrew studies. As the editor of the Jewish Publication Society, Dr. Grayzel testified to his familiarity with the King James, Revised Standard, and both Douay and Knox Catholic Versions of the Holy Bible. The Court deemed him qualified as an expert witness.

[15] Ibid., 401.

[16] Ibid.,402. Also broached by the defense was the supposition that in the absence of Christian religion, a 'secular humanist' religion would instead fill the void.

[17] Ibid., 402. By today's judicial and social standards, such blatant denial of the undeniably sectarian nature of such exercises would not be greeted with much credulity. In fact, such free admittance to the religious nature of the observances would be enough in itself to show a deprivation of constitutional rights. Lemon v. Kurtzman, 402 U.S. 602 (1971).

[18] 374 U.S. 210. The superintendent and several principals of the school district's various participating institutions testified that other than the protest launched by the Schempp family, none other had ever been leveled at the practices in question.

[19] 177 F. Supp, 405. The court cited Everson v. Board of Education, 330 U.S. 1 (1947) and that court's reading of the Establishment Clause of the First Amendment.

[20] Ibid., 401, 406.

[21] Ibid., 405.

[22] Ibid., 406. Specifically, the opinion read, "The right of the parent to teach his own faith to his child, or to teach him no religion at all is one of the foundations of our way of life and enjoys full constitutional protection."

[23] 364 U.S. 298.

[24] 201 F. Supp 817 (1962). That amendment, known as Pennsylvania General Assembly Act No. 700, enacted the following revision to the original provision: "Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian."

[25] Ibid., 818; Norman L. and Emily S. Rosenberg, In Our Times (Englewood Cliffs: Prentice-Hall, 1991), 47. At the height of the Cold War, those appearing not to believe in God were likely to be labeled as atheists, unpatriotic or communist.

[26] Ibid., 818. The defense's argument of unproven harm was one easily dismissed by a cursory review of the first case's evidence and testimony. The bench established its jurisdiction with a simple declaration that there was nothing to indicate the state courts would litigate on what this court deemed to be important issues or religious freedom.

[27] Ibid., 819.

[28] Ronald C. White and Albright G. Zimmerman, eds., An Unsettled Arena: Religion and the Bill of Rights (Grand Rapids: Wm. B. Eerdmans Publishing Co., 1990), 70.

[29] Terry Eastland, ed., Religious Liberty in the Supreme Court (Washington: Ethics and Public Policy Center, 1993), 151; Derek Davis, Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations (Buffalo: Prometheus Books, 1991), 91. The judicial doctrine of incorporation had its beginning with Gitlow v. New York, in which the Court held that the First Amendment freedoms of speech and press were among those protected by the Due Process Clause of the Fourteenth Amendment. The Free Exercise and Establishment Clauses were similarly incorporated into restriction of the states in 1940 and 1947 respectively.

[30] 374 U.S. 213, 225.

[31] 374 U.S. 215. This was as demanded by the Establishment Clause of the Fourteenth Amendment as applied to the states in clear predecent from 1940's Cantwell v. Connecticut onward.

[32] Eastland, Religious Liberty, 59. Justices Frankfurter, Rutledge, Jackson, and Burton took the idea one step further in Everson v. Board of Education, 330 U.S. 1 (1947). In it they declared, "The [First] Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, . . . [but] to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."

[33] 374 U.S. 220.

[34] Ibid., 222.

[35] Derek Davis, Original Intent, 77.

[36] Ibid., 77.

[37] Ibid., 77; 374 U.S. 237.

[38] 374 U.S. 233.

[39] Ibid., 253-56.

[40] Ibid., 267.

[41] Ibid., 271.

[42] Ibid., 273.

[43] Ibid., 288.

[44] Ibid., 284-85. In the original District Court proceeding, Rabbi Grayzel testified that, as an example, in Judaism the Bible is to be studied and not merely read. In the case of Ellory Schempp (and his siblings), the very reading itself was offensive.

[45] Eastland, Religious Liberty, 164.

[46] Ibid., 164.

[47] Ibid., 164-65.

[48] Ibid., 165.

[49] Ibid., 165. The text notes this as the first suggestion by a Court member to such a thing as a "religion of secularism" and refusal to permit religious exercises in public schools as an "establishment" of it.

[50] Ibid., 167.

[51] Anthony Lewis, "Government Must Be Neutral in Religion, Majority Asserts," New York Times, 18 June 1963, p. 16.

[52] "Billy Graham Voices Shock Over Decision," New York Times, 18 June 1963, p. 17.

[53] George Dugan, "Churches Divided, With Most in Favor," New York Times, 18 June 1963, p. 18.

[54] Madalyn Murray Hair, Freedom Under Siege (Los Angeles: J.P. Tarcher, Inc., 1974), 55.

[55] Boston, Why the Religious Right Is Wrong, 227. The Framers probably thought they were being crystal clear in drafting the First Amendment's religion clauses: "Congress shall make no law respecting an establishing of religion, or prohibiting the free exercise thereof." What could be simpler? Government may neither advance nor inhibit the exercise of religion, and therefore need only remain neutral to abide by the religion clauses' dictates. If viewed clearly, the First Amendment is all that is necessary to protect both the rights of those who wish to pray and those who do not. No other amendment should be necessary. In fact, a surprisingly large number of religious groups, to include the National Council of Churches applaud Abington v. Schempp as increasing religious freedom, rather than retarding it.

[56] Carman Licciardello, Raising the Standard: Reclaiming Our World for God (Nashville: Sparrow Press, 1994), 81.

[57] Boston, Why the Religious Right Is Wrong, 228.

[58] Eastland, Religious Liberty, 215.

[59] New Jersey Law Journal, 6 July 1992, p. 19.


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