School District of Abington Township, Pennsylvania v. Schempp – Oral Argument, Part 1: School District of Abington Township, PA v. Schempp – February 27, 1963 (142)

Media for School District of Abington Township, Pennsylvania v. Schempp

Audio Transcription for Oral Argument, Part 1: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142) in School District of Abington Township, Pennsylvania v. Schempp

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Earl Warren:

Number 142, School District of Abington Township, Pennsylvania et al., Appellants, versus Edward Lewis Schempp et al.

Mr. Ward.

Philip H. Ward, III:

May it please the Court.

This case is here on an appeal from the decision of a three-judge District Court that held Pennsylvania’s Bible-reading statute being unconstitutional establishment of religion.

Now, this case is different from the case you have just heard because in Pennsylvania, the Bible-reading statute does not require that the Lord’s Prayer be said, it has nothing to do with the Lord’s Prayer.

It is the practice at Abington Township during the morning exercises to follow the statutory Bible reading with the recitation of the Lord’s Prayer.

However, that is not the practice in all of Pennsylvania.

The decree that has enjoined Abington in this case and the court below found it was unconstitutional either to read the 10 verses of the Bible pursuant to Pennsylvania statute either alone or in conjunction with the recitation of the Lord’s Prayer.

Consequently, the basic issue in my case is a constitutionality of reading 10 verses of the Bible without comment to the school children of Pennsylvania, or if the Court finds that that practice is unconstitutional, it need not concern itself with the Lord’s Prayer.

And if it finds that practice is constitutional, the reading of the 10 verses, but that following it with the recitation of the Lord’s Prayer effects the constitutionality of the Bible reading then of course it could frame a decree accordingly.

John M. Harlan II:

Do this come up on demurrer or —

Philip H. Ward, III:

No, sir.

There is a record in this case.

We also believe that this case is different from any of the cases, the church state cases this Court is heretofore considered.

We think we have a novel factual situation here.

We think the question presented for this Court for the first time is, what does the Constitution require us to do with an old tradition that has undoubted secular values, it’s noncompulsory, but yet it in some ways reflects the religious origin of the country?

Byron R. White:

This is a — it’s noncompulsory, was there any place in the school with the — I can’t get to the (Inaudible)

Philip H. Ward, III:

Yes, Mr. Justice White.

I just —

Byron R. White:

Were there any places at school you’d go and not (Inaudible)

Philip H. Ward, III:

Actually, there’s nothing in the record because nobody asked to be excused.

We could speculate the public address system typed into each room.

You can turn off a button so that one room will be no noise but there’s nothing in the record from turning it.

Byron R. White:

So it never — was there any need to make (Inaudible)

Philip H. Ward, III:

That question never arose.

We shall argue that the religious liberties of the Schempp’s who were the appellees — the plaintiffs in this case are not infringed that this case doesn’t concern the establishment of religion within the meaning of the Constitution and that there is no requirement that Pennsylvania must give up an ancient custom simply because it involves the use of the Bible.

Now, this litigation started five years ago when the original complaint was filed.

At that time, the Bible-reading statute of Pennsylvania provided that 10 verses of the Holy Bible had to be read at the opening of each school day, provided it will be read by the teacher in charge and it further provided that in the event the teacher refused to participate, he could be dismissed.

The complaint filed by the Schempp’s under that statute said that the practice at Abington, reading the Bible according to the statute following it with the recitation of the Lord’s Prayer, violated their religious consciences and liberties, interfered with the rights of the parents to raise their children and the method of their own belief.

And also practiced — the practice fostered contradictory beliefs.

Audio Transcription for Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142) in School District of Abington Township, Pennsylvania v. Schempp

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Philip H. Ward, III:

They sought an injunction against the reading of the Bible following by the Lord’s Prayer.

Now, there was a trial held and we have a record in this case.

The trial was held and the three Schempp children, Roger, Ellory and Donna, testified that they had been compelled to attend Bible reading.

They testified that many passages from the Bible read to them, confused them, aggrieved them, and taught some things which was contrary to their belief at home.

John M. Harlan II:

How old are these youngsters?

Philip H. Ward, III:

They’re — the two — Roger — Ellory, who was the oldest, Mr. Justice Harlan has graduated.

He’s about 21.

But Roger and Donna, I think are 17 and 19 but in any event they’re both presently at Abington High School, senior class.

In addition to the testimony of these children, we had the testimony of two experts.

Arthur J. Goldberg:

These children are Unitarian?

Philip H. Ward, III:

Sir?

Arthur J. Goldberg:

These children are Unitarian?

Philip H. Ward, III:

They are Unitarian.

We had the testimony of the two experts, who testified concerning the Bible pretty much as Your Honors would expect that the Bible is a great document.

It’s an old document.

It comes from certain basic original sources.

That it is a religious document in the sense that it has moral literary value that Dr. Grayzel, who was an eminent Jewish Theologian, testified that all of the New Testament and parts of the Old Testament would be — would offend the belief of the Jews.

As a result of that trial, the lower court, the three-judge court found that the practice of reading the Bible pursuant to the old compulsory statute, followed by the saying of the Lord’s Prayer, amounted to an establishment of religion because it said the Bible deals with man’s relationship to God.

That this daily reading is a daily reminder of that relationship and this daily reading indoctrinates the children and that consequently also the parent’s rights were abridged.

It said it violates free exercise and that Ellory and the children were forced to attend.

And then it said, since the teachers had to read under pain of dismissal, they would try to get a large audience for the Bible reading to hear.

The main point, the main thrust —

John M. Harlan II:

I don’t get — I don’t get the last part.

Philip H. Ward, III:

We — you recall under the statute as it then stood, it required that the teacher in charge reading the Bible or cause it to be read and any teacher who refused to participate could be disciplined and expelled.

Therefore, in the lower court decision, in the first case which was the trial under that particular compulsory statute which contained that provision, the judge said that since a teacher knows that he may be expelled or may be dismissed, it’s — to his advantage to assemble — convince the children to listen.

John M. Harlan II:

I don’t get it but I understand it.

Philip H. Ward, III:

No.

What the court below meant was this, that since the — the court reasoned that if the teacher knows that he must conduct this ser — I don’t agree with what the court held, but this is what I understand them to say, if the teacher knows he is required to participate in this service, therefore he knows the state likes to serve it, therefore he is going to make certain the children are attentive and listening when the ceremony is conducted.

John M. Harlan II:

Well, alright.

I hear you.

Audio Transcription for Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142) in School District of Abington Township, Pennsylvania v. Schempp

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Philip H. Ward, III:

Alright.

That’s what they call it.

John M. Harlan II:

One thing I — I gather to that is that they need a teacher or have more witnesses to testify.

Philip H. Ward, III:

Well that’s — and then in fact there is no teacher complaining here which I think is the short answer to the question.

Arthur J. Goldberg:

(Inaudible)

Philip H. Ward, III:

Thank you, Mr. Justice Goldberg.

That is what I was trying to say and that is what (Voice Overlap)

John M. Harlan II:

Well, I thought there’s no point in relying to this but I didn’t know if the statute for — said that the teacher not only have to read but be enthusiastic about it.

Philip H. Ward, III:

Well, they required enthusiasm in Abington.

But the essential part of the lower courts decision in the first compulsory statute was — as I understand the compulsion that every child had to attend.

In other words, it was a concern then to what reading a certain passage from the Bible might be on a Jewish child’s mind, but he knew a Jewish child had to be there.

And as a matter of fact, the eighth finding of fact of the first decision which is at page 194 of the record, was that as a matter of fact, the children had to be present and that they were compelled to be present at the Bible reading ceremony.

So the decree held that, the first decree held that we could not read the Bible pursuant to the statute or otherwise except that we always can use any book, this decree said.

We can use any book we want in the schools of Abington as a reference or as a source, as a material for study.

In other words, they weren’t banning the Bible per se from Abington.

They mentioned nothing of the Lord’s Prayer in the first decree.

Following this decree, we immediately found notice of appeal with this Court.

Prior to the time, our jurisdictional statement was filed with this Court, the legislature of Pennsylvania amended the Bible Reading Act to provide that any child could be excused from the Bible reading, from participating or being there upon a written request of his parent or guardian and also eliminated from the statute, that particular language about the teacher having to be enthusiastic as Mr. Justice Harlan said, that was stricken out.

We — this Court then, the Supreme Court, they catered the judgment and remanded our case back to the three-judge District Court for further action appropriate in light of the amendment to the Bible-reading statute.

Thereafter, the three-judge court allowed the Schempps to amend their complaint by eliminating the name of Ellory, who had been graduating and by simply substituting the new statute.

A trial was held under the amended statute, and at that trial, the testimony was as follows, doctor — Mr. Schempp, the father, testified that he was familiar with new excused provision but that he had not elect to have his child — his children excused because he thought if he did, if he asked them to be excused, the other children would consider his children odd balls, as a word he used, different.

I think communists or immoral, the word from the record but in any event, different.

Potter Stewart:

So, the fact is he did not ask to have his children excused?

Philip H. Ward, III:

No, he did not.

He testified —

Potter Stewart:

Then you don’t know, therefore, what effect, if any, there would have been —

Philip H. Ward, III:

No.

Potter Stewart:

Had he done so?

Philip H. Ward, III:

No, all we know is that he believes that had they been excused —

Potter Stewart:

Well, that’s a subject (Voice Overlap).

Audio Transcription for Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142) in School District of Abington Township, Pennsylvania v. Schempp

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Potter Stewart:

Exactly and that’s all we have, isn’t it?

Philip H. Ward, III:

That is all we have on it.

He was follow — he also described, what he said were the mechanics of Bible-reading in Abington.

He described how it worked but he admitted he had never been there.

He had never talked to the teacher about it.

He never talked about the excused provision.

His son follow — Roger followed him to the stand and said that his father had correctly described the practice at Abington or the objections of Abington, the appellants, the Court also admitted into this second trial, all of the evidence that had been taken in the first trial under the compulsory statute.

We believe then and we believe now that testimony concerning a compulsory statute where a child has to listen, has no effect in — is irrelevant in a trial where a child may absent himself but we — this, the issues in this Bible case transcend any problem of admissibility of evidence so we do not make that argument now.

As a result of the second trial, the lower court’s decision was that the amended statute and that is as you recall the statute requires — provides to be excused was an establishment of religion.

It said that Bible-reading followed by the Lord’s Prayer is devotional.

It said that the excuse is no help because the practice is still held everyday, that the Bible was a Christian document.

It didn’t — this is the court’s decision with which we are now appealing did not deal with the Free Exercise Clause because it’s said it was unnecessary to pass on the contentions of the Schempps concerning free exercise, because we find this is an establishment of religion.

It said that this case is really governed, falls right within McCollum.

That the facts are essentially the same and the decree that was issued enjoins us, as I have said from reading the Bible pursuant to the statute, either in conjunction with or not in conjunction with saying the Lord’s Prayer.

The decree also says that we can use any book in the schools or religious source — for educational source.

He almost filed probable jurisdiction noted and we are here today.

John M. Harlan II:

Did that junction go into effect?

Philip H. Ward, III:

No, we obtained to stay until the action of this Court.

What is this Bible reading practice?

Potter Stewart:

Did I understand you to say Mr. Ward before you proceed, that there was reliance at all in the Free Exercise Clause in the Court in this case?

Philip H. Ward, III:

The — in the second decision —

Potter Stewart:

Which is before us now.

Philip H. Ward, III:

Before us now, the Court said it need not pass on the Free Exer — the contingencies made on the free exercise because we find that this is a violation of the Establishment Clause.

Now, what is this particular practice with which the Schempps — to which they object?

Now, although the public school Bible-reading practice in Pennsylvania is an old one, we know from the records that it was old in the 1860’s.

It first became statutory in 1913 and the amendment to that Act said, “The purpose of the statute was to bring lessons of morality to the school children during their school days.” Since that time, it’s been continuously required by the statute.

At Abington, this is the way it works, between 8:15 and 8:30 on every school day, all the children in their homerooms, advisory sections, there’s a public address system in each of their room.

At 8:15, the morning exercise starts.

First, they have what’s called an introduction, a fact for the day.

They pull something out of the World Almanac to gain the attention of the children.

Audio Transcription for Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142) in School District of Abington Township, Pennsylvania v. Schempp

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Philip H. Ward, III:

Mt. Everest is 29,000 feet high, something like that to get them thinking.

This is followed by 10 verses of the Bible, read without comment —

Arthur J. Goldberg:

The Almanac comes first?

Philip H. Ward, III:

The Almanac comes first.

It’s an attention gatherer.

This has followed —

Potter Stewart:

Almost later I guess.

Philip H. Ward, III:

Sir?

Yes, this is followed or the 10 verses of the Bible is followed by the Lord’s Prayer which in turn is followed by the flag salute, which in turn is followed by the school announcements for the day.

The botany class will meet in room A instead of room B.

Then you have a conclusion at which they announce the children who read the preceding announcement.

These announcements, this reading of the fact of the day, the Bible, the prayer, are done by the children of the — the students of the television and the radio workshop which is a regular course of the English Department at Abington.

There are about 30 students in this course and it’s voluntary.

The Bibles — these chil — these students read, the — excuse me — the Abington only supplies one Bible.

It purchases one Bible which is the King James Version.

These students who read the Bible or in this course of 30 people are encouraged to read their own Bibles and the record shows the testimony to the effect that the King James Version has been read, the Revised Standard Version has been read, the Jewish Holy Scriptures had been read and the Douay Version has been read.

The selection of the verses to be read is completely up to the child.

This is the practice that the Schempps are complaining about, 10 verses of the Bible read by one child to another.

Potter Stewart:

And this is — these are broadcast or typed from one place in the school to every classroom?

Philip H. Ward, III:

Yes, Mr. Justice Stewart there is a room at which the radio and TV class meets.

That is where the little broadcasting affair is and then the children participate there, those that have been selected to read.

Potter Stewart:

We’re talking about one school building here?

Philip H. Ward, III:

It’s the only one that is a subject to this suit sir, the Abington High School and that is where both of these children are.

Roger and Donna are seniors in that school.

This is the way it is carried out —

Potter Stewart:

In this school?

Philip H. Ward, III:

In this school.

Potter Stewart:

And there is no evidence at all in the record as I understand it because of the posture of the case as to what would happen if it showed up or showed a child or his parents take advantage of the statute and request to be excused from this.

Philip H. Ward, III:

The only thing that — there is no evidence to show what would happen, except this Mr. Schempp testified.

Potter Stewart:

That’s his subjective prophecy.

Audio Transcription for Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119) in School District of Abington Township, Pennsylvania v. Schempp
Audio Transcription for Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142) in School District of Abington Township, Pennsylvania v. Schempp

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Philip H. Ward, III:

Yes.

Potter Stewart:

Without that there is nothing.

Philip H. Ward, III:

But he testified that a child might be made to stand outside the classroom but that is as you say is subjective testimony.

There is no — the situation is never a reason, therefore there is no —

Potter Stewart:

So we, we don’t know — there’s no evidence at all, one way or the other about whether or not there would be any compulsions or coercive forces psychological or otherwise?

Philip H. Ward, III:

Because no one asked to be excused.

What are the Schempps really complaining about?

It’s not the Bible itself because —

Arthur J. Goldberg:

(Inaudible)

Philip H. Ward, III:

No, sir.

Arthur J. Goldberg:

(Inaudible)

Philip H. Ward, III:

No, sir.

Mr. Justice Goldberg, on page 16 of their brief, the plan — the Schempps make the argument that they have no objections of the Bible being used in the schools as part of a pedagogical source material.

They’re like the court below, the court has always said, we are not preventing you from using the Bible in the schools, what the plaintiffs say is they don’t like the way we are using the Bible.

They say we are not in fact teaching morality, bringing lessons of morals to the children although that’s what the statute says we’re doing and that is what we contend we’re doing.

The Schempps say we are not doing that.

How could we be teaching moral?

Earl Warren:

We’ll recess now, Mr. Ward.