School District of Abington Township, Pennsylvania v. Schempp – Oral Argument, Part 2: Murray v. Curlett – February 27, 1963 (119)

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

del

Earl Warren:

Mr. Kerpelman, you may proceed.

Francis B. Burch:

It is — I understand Mr. Kerpelman, this — Mr. Chief Justice —

Earl Warren:

Yes.

Francis B. Burch:

— do not propose to argue any further this time.

Leonard J. Kerpelman:

I intend to (Inaudible)

Francis B. Burch:

That’s it.

Leonard J. Kerpelman:

I intend to sit at the meantime.

Earl Warren:

Yes, very well.

Mr. Burch.

Francis B. Burch:

Mr. Chief Justice, may it please the Court.

At the outset, I would like to state that the respondents do not intend to waive the question of the jurisdiction of this Court in this matter.

We covered this in our brief in opposition to the granting of the writ.

We did not repeat our argument; however, in the brief that we submitted on the merits of the case.

I merely say that by way of passing.

I understand that the Court in Engel has in effect, indicated that the Court does have jurisdiction in a case such as this.

Simply for the record, I would merely like to point out that we do not by having failed to mention it in our brief on the merits intend to waive it.

Now —

Potter Stewart:

Mr. Burch, the plaintiff — the petitioner — or two petitioners, the — William J. Murray III who is a — was then and now still is in the Baltimore school system, is that right?

Francis B. Burch:

Yes, Mr. Justice Stewart.

Potter Stewart:

Suing through his (Inaudible), his mother, and his mother, individually, is also a petitioner.

Francis B. Burch:

Yes, sir.

Potter Stewart:

And they both alleged that they’re atheists, is that correct?

Francis B. Burch:

Yes, sir.

Potter Stewart:

And that the ordinances or rules of the Baltimore school system interfere with the exercise of their belief or disbelief.

Francis B. Burch:

That’s correct, sir.

William O. Douglas:

It comes down to the Doremus case from New Jersey, is that right?

Francis B. Burch:

The Doremus case held, of course, —

William O. Douglas:

Yes.

Francis B. Burch:

— there was no violation except that the question with respect to the individual child’s rights was moot because the child had then graduated from the school.

Potter Stewart:

But this child is still in the school.

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

del

Francis B. Burch:

This child is still in the school.

Our position is simply this, that the Establishment Clause of the First Amendment is a matter of decree.

In other words, the wall of separation between church and state is a matter of decree.

It is not an absolute, fixed, finite wall, and this Court has so stated on several occasions.

As a matter of fact, in Zorach, it was stated that when you get into the question of the separation between church and straight — state, it is indeed a matter of decree.

And, it was because of this very factor that this Court in Everson held that though religious exercises or religiousness was involved, that it still did not violate sufficiently the Establishment Clause as to constitute an abridgment of that Clause.

The same was true in McGowan, the Sunday Blue Law cases.

The Court in that case held that, historically, there was no question about it but that the Sunday Blue Laws were laws which were established for the benefit of religion, from the day of rest, to keep holy the Sabbath day.

As a matter of fact, under the Maryland statute in McGowan, the statute provides so that the day of rest, in order not to profane the Lord’s Day.

So, we have this question of religiousness in McGowan, but this Court stated in that case that there was not a sufficient degree of abridgment of religiousness, so to speak, as to violate the Establishment Clause.

Now let’s go, if we may, to the case at bar.

This is the Murray case.

It is true that the rule of the Baltimore City schools provide that there shall be the Lord’s Prayer and the reading of passages from the Bible.

This is a long established practice which goes far beyond the rule itself.

Historically, it will be — it can be shown, were there’s not a case up on demurrer.

It can be shown that the practice goes back at least as far as 1836 throughout the schools of Maryland.

Now, the practice, we maintain, has something in it other than religiousness itself.

It is true that the Lord’s Prayer, it is true that the Bible, sounds and religion has its roots in religion.

This, we do not deny.

We point out however, that the use of the Bible, the use of the Lord’s Prayer in the morning exercises has a significant salutary effect in several respects.

First of all, it has a traditional teaching of moral and ethical values.

This, I believe even my Brother, Mr. Kerpelman, admitted when he stated that it was a beautiful prayer, the most beautiful prayer ever composed or at least many people believed that it was, that the literature of the Bible was historical and that it was the most widely read book of all books ever composed.

Now —

Arthur J. Goldberg:

Mr. Burch, (Inaudible)

Francis B. Burch:

The Lord’s Prayer is said in unison.

The individual child who conducts the opening exercise for that day which includes not only the prayer but the salute to the flag, the individual child would probably say his version and those who join him will probably say their version.

Arthur J. Goldberg:

(Inaudible)

Francis B. Burch:

It is recited together.

Now, I cannot say that this may absolutely be true in every school.

Of course, we have no record in this case, but my understanding is that basically, a child is selected for the particular day to conduct the morning exercises and then everybody recites the prayer together.

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

del

Francis B. Burch:

They can say their version, if they prefer one, or they can say nothing even if they’re not excused or do not wish to take advantage of the right of excuse.

Arthur J. Goldberg:

What about the (Inaudible)

Francis B. Burch:

I think the — basically the King James Version is the one that is used most often.

There’s of course provision in the rule itself which says that the Douay Version may be used by those who prefer it.

But the King James Version, I believe, is the one that is used in most instances.

Potter Stewart:

Teacher reads it in each classroom?

Francis B. Burch:

Generally, the students who are conducting the morning exercises will read passages from the Bible as they will also start the Lord’s Prayer and start the salute to the flag.

Potter Stewart:

Is this the one where it’s a broadcast through the school or is that the (Voice Overlap) —

Francis B. Burch:

No, never — there is an assembly, it is broadcasted in every — all of the students should — that they gather and is done in unison in the assembly.

In some of the schools, I believe, it is broadcasted.

In others, I’m not sure.

I believe it might be conducted within the classroom itself.

Potter Stewart:

Each individual classroom.

Francis B. Burch:

In each individual classroom.

Potter Stewart:

You say a student, rather than the teacher, reads the Bible?

Francis B. Burch:

Student, generally, is the one who conducts the opening exercise.

Now, this is the best of my information.

Of course, we are at this disadvantage (Voice Overlap) —

Potter Stewart:

We don’t have a record here.

Francis B. Burch:

We don’t have a record.

Potter Stewart:

That’s the difficulty in this case.

Francis B. Burch:

Because it came up on demurrer.

William O. Douglas:

Would your argument then vary, Mr. Burch, if this — instead of the Bible, it was the Koran that was being read everyday in school?

Francis B. Burch:

Mr. Justice Douglas, my argument would not change, sir.

We say this, that the school is charged with the responsibility of doing what it considers proper within the framework of the school system to develop the children under their care.

The school then has the right to make a reasonable selection as to what it thinks will do both in the way of the courses conducted and in the material used whether it be in history or whether it be in this area in the morning exercises.

They may use, for instance, the hymn America instead of using the Salute to the Flag.

They may use the King James Version or the Duran instead of using the Douay Version.

Our position is that this is a matter that rest within the discretion of the school authorities and unless there — it can be shown that this constitutes at a violation of the Establishment Clause, that then — it is then within the prerogative of the school to do that which they think is proper for the best interest of the children.

William J. Brennan, Jr.:

Well, Mr. Burch —

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

del

Francis B. Burch:

Excuse me, sir?

William J. Brennan, Jr.:

— (Inaudible) under Section 6, are arguing that?

Francis B. Burch:

No.Mr. Justice Douglas was inquiring whether or not my view would be the same or my argument would be the same if that particular version could be used or if that reading could be used.

William J. Brennan, Jr.:

I gather Section 6 (Inaudible).

Francis B. Burch:

I’m sorry.

I didn’t get your question, Mr. Justice.

William J. Brennan, Jr.:

It would not — Section 6 preclude reading from the Koran?

Francis B. Burch:

In that it specifically provides that it may be used, that is, the Douay Version may be used.

It might be construed to say that all other instruments may not be used.

I don’t think that’s a proper construction.

And as a matter of fact, I doubt very seriously whether the Board or the school principal would so construe it.

William J. Brennan, Jr.:

Well, it says, “shall be opened by the reading of a chapter in the Holy Bible and/or the use of the Lord’s Prayer.”

Francis B. Burch:

And/or the use of the Lord’s Prayer.

William J. Brennan, Jr.:

Do you think that might be interpreted to authorize that reading from the Koran?

Francis B. Burch:

I think that it — if you are going to say that there shall be a complete, strict construction of that particular role, then maybe it cannot be used, the Duran.

Potter Stewart:

It cannot be used to open the exercises but there’s nothing there —

Francis B. Burch:

In the opening exercises.

Potter Stewart:

— that says it couldn’t be used to close them or at any time during the exercises.

Francis B. Burch:

It may be used —

Potter Stewart:

But I don’t think that has anything to do with this case.

Francis B. Burch:

During the exercise or — actually, we say that the morning exercises are not there for religious purpose.

Now, we do not deny that maybe they began because historically, if you go back, there was always religion in the schools and, of course, this is one of the reasons why, as I understand it, back in the prerevolutionary days, the schools were not secular.

They were really religious schools.

This, I understand, is why you had the First Amendment, the Establishment Clause, so that they could not have religion taught in school as religion per se.

Now, subsequently, when you got into your common schools and your public school system, the school authorities, although not required to by rule or regulation, as a matter of either religiousness at that particular time or it’s the combination of religiousness plus the inculcation of these moral and ethical values within the students, decided that this was a good practice for the benefit of the whole child.

Beyond that, we have the indication in the brief which we have filed that Dr. Brien, the superintendent of the public schools of Baltimore City, has indicated that these exercises, these morning exercises, have an extremely salutary effect upon the children coming into the school.

It puts them in a frame of mind.

There is a sobering influence.

It puts them in a frame of mind when they can approach the school day with some sobriety —

Potter Stewart:

But you could (Voice Overlap) —

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

del

Francis B. Burch:

— we have a respect for authority — excuse me, sir.

Potter Stewart:

Just give them tranquilizer pills if that’s the only —

Francis B. Burch:

That’s —

Potter Stewart:

That’s the purpose.

Francis B. Burch:

Dr. Brien says that what this does, it establishes a discipline tone.

It establishes a respect for authority and it also has the value of giving them the inculcation of moral and ethical precepts.

This, he considers to be a very, very significant effect to begin the school day with.

Earl Warren:

Let us take a state like Hawaii.

Hawaii has a large percentage of people of Japanese origin, large percentage of people with Chinese origin.

And in many places in the islands, there will be a vast majority of either Chinese or Japanese in their public schools.

Do you — do you say that in schools of that kind it would be proper to have a — in the Chinese school to have a Buddhist ceremony that all children, including Christians, must conform to or have their parents disavow it or the Shinto religion, so far as your family is concerned?

Francis B. Burch:

Our position, Mr. Chief Justice, is this.

That if the school authorities in that particular jurisdiction should determine that morning exercises will serve a significant purpose other than pure religiousness itself, then we say that they then had the right to make such selection of material as the school authorities in that instance think will best accomplish that purpose.

Earl Warren:

Your answer —

Francis B. Burch:

That —

Earl Warren:

— would be yes then, that they could do that.

Francis B. Burch:

They could do that.

Earl Warren:

Yes.

Francis B. Burch:

If the purpose is not to teach religion, not to instruct in religion, but simply to set the tone of the day and to give them the benefit of the discipline tone, to give them the benefit of respect for authority which is one of the most significant things that is needed in the school system whether it be secular, whether it be parochial, whether it be private.

Arthur J. Goldberg:

(Inaudible)

Francis B. Burch:

I would say that it is one of the effects of the exercise, but it is only one of the many effects of the exercise.

And, as long as there is a purpose which can be served.

As a matter of fact, Mr. Justice Black in McGowan stated, it is equally true that the Establishment Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenants of some or all religions.

In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation.

This is our position.

John M. Harlan II:

Of course, you’ve got the record down.

The Court laid great emphasis on the fact that, although the Sunday Laws had their origin in religion and, over the years, they had departed from that origin and had taken on the characteristic of simply a legislative determination that a day of rest was an appropriate thing to have in the community.

And therefore, the real question there was as to whether or not it was permissible, given that transmutation in the original background to select Sunday because it happened to coincide with the —

Francis B. Burch:

Mr. Justice Harlan, my reading of McGowan indicates to me that the Court recognized that there was a mixture.

There was religiousness.

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

del

Francis B. Burch:

It was religious in its origin.

It had not been completely obliterated the religious aspect, but that there was this other civic or civil purpose that was to be accomplished.

And, I might say that McGowan was a case where there was a very severe penalty imposed upon those who did not wish to abide by the rule and even going down to the latest amendment to the Sunday Blue Laws in Maryland which was involved in McGowan, the — this Court pointed out that the — there was the reference in there that it was to prevent profaning the Lord’s Day which indicates the religious, undercurrent, that the Sunday Blue Laws were intended to effect.

And true, it had the civil aspect to it.

This is what we say.

As long as the Court can find a reason or that there was justification by the legislature or the state body to rationalize or to justify the use of this particular exercise for some effect other than religion that it then does not conflict with the Establishment Clause.

As a matter of fact, that very statement was made in McGowan where the — Mr. Justice Black at page 425 stated, a statutory discrimination will not be set aside if any state affects reasonably may be conceded — concede to justify it.

Now, I know that was in relationship to the Equal Protection Clause, but it —

Earl Warren:

But we also pointed out in McGowan, didn’t we, that the state had departed so far from religious purposes that it specifically authorized the sale of liquor and the keeping open of a dancing salon and a few other gambling and a few other questionable things, and didn’t we point out in there that that was evidence of having been a real departure from the religious purposes that went back into the ages?

Francis B. Burch:

Yes, Mr. Chief Justice.

Earl Warren:

But when you come to the saying that it had a basis in religion, couldn’t we say the same thing for practically all of our basic crimes?

Are they not — do they not stem from a violation of the Ten Commandments?

Francis B. Burch:

I say that they do stem from a violation of the Ten Commandments, but the mere fact that they’re made crimes by law doesn’t mean that they’re in violation of the —

Earl Warren:

But McGowan went on this theory —

Francis B. Burch:

— First Amendment.

Earl Warren:

— that there was such a departure from the original concept that they were in that category.

Francis B. Burch:

Mr. Chief Justice, I agree that there was a departure in McGowan and I say that the legislature and the state body is entitled to the presumption of constitutionality where it can be shown that the particular exercise, the particular service, or whatever you might wish to call it, has a basis other than in religion itself.

Earl Warren:

Is there any departure whatsoever in your case from religious purposes?

Francis B. Burch:

The only departure that —

Earl Warren:

There is, I wish you’d state it.

Francis B. Burch:

We could point to specifically in the same light as McGowan is on the excuse provision in which the rule was amended to provide that the child who did not wish to attend could be excused.

I don’t say that this is the same type of departure as existed in McGowan.

I would like —

Hugo L. Black:

May I ask if —

Francis B. Burch:

Yes, sir?

Hugo L. Black:

This — if it depend on the majority of the people in the school district, does it necessarily follow that the religious doctrine that would be taught would naturally follow the majority in their district?

And there are so many different sects in this country that you would have different public schools teaching different religions in — everyone and then these people who are so anxious to have this particular one taught would probably not be so anxious to have the other one taught.

Francis B. Burch:

There’s a — Mr. Justice Black, may I say that I think this was basically answered in your opinion in McGowan when you said the mere fact that it may — a particular practice may or may not coincide with the views —

Hugo L. Black:

That’s right.

Francis B. Burch:

— of some or all religions.

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

del

Hugo L. Black:

That’s right.

And I —

Francis B. Burch:

It doesn’t make it unconstitutional.

Hugo L. Black:

Well, I’ll call your attention to this fact.

For many years, we’ve had a fight on this country to have more time for working men to all get off from work.

And, it so happens that this seventh day had been the one where they’ve gotten off from work and they have it, as been established in this country because I took note in several pieces of legislature now often, that its thought to be good that there’d be holidays and the mere fact that at one time, people thought the seventh day was the only day you could have a holiday, would it be — wouldn’t make it any different if you provided that that holiday should be on Tuesday or Wednesday.

That might conflict with somebody else, but the basis of those opinions, at least my view point, was very simple, with the power to protect people from being employed two long hours in one day or two many days in one week.

It’s a well recognized power and it could — there could be one written up in such way.

It said we’re going to have it on the seventh day and we’re going to have it from — holiday from 10:00 until 12 o’clock to let people go to a certain church, why you’d have a different question.

But so far as I’m concerned, your argument here does — my position in McGowan has nothing to do with this case.

Francis B. Burch:

I am not drawing on McGowan as being the absolute authority.

I am drawing on McGowan to sh — to try to persuade the Court that basically, if we are in a position to show that this will perform a function other than pure religiousness itself —

Hugo L. Black:

Are you disavowing — are you disavowing for the State of Maryland that which I had understood is generally acknowledged from everything I’ve read about it and all the communication that has been transmitted about it, that this is because — they want to do this because it impresses the Lord’s Prayer.

Many of us have repeated very often, and require the reading of the Bible.

Are you disavowing that the purpose is to increase their interest in that particular religion?

Francis B. Burch:

I am not disavowing anything in that respect.

What I am saying is —

Hugo L. Black:

You could not, could you?

Francis B. Burch:

I believe that the school authorities feel that, although it has its basis in religion, although it is in the nature of a religious prayer, as far as the Lord’s Prayer is concerned or the passages of the Bible, it is calling upon these ancient documents which set forth many moral lessons and ethical values and that these helped inculcate the spirit of morality and the ethics within the child himself.

Hugo L. Black:

So did the Koran and so do the Veda.

Francis B. Burch:

The US decided —

Hugo L. Black:

Do you think there’s a slightest possibility that if Baltimore, if people there would ever have one of those books read as a part of a religious ceremony, one of either the Koran or the Veda or the Buddhist doctrine.

Francis B. Burch:

It would be pure speculation on my part to say whether they would or whether they wouldn’t.

I can concede where they would.

I would say that in the society in which Baltimore exists, that the likelihood is in the discretion of the School Board in selecting a work which it thinks would be most in tuned with the spirit of the people of the State of Maryland or the City of Baltimore.

Hugo L. Black:

It’s a religious principle.

Francis B. Burch:

Pardon me?

Hugo L. Black:

Were they religious principles, of course.

Francis B. Burch:

I think it —

Hugo L. Black:

It seems to me like —

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

del

Francis B. Burch:

I think it’s a combination of both.

Hugo L. Black:

You’d do better if you’d face the iss — I don’t know what’s the answer to it, but how can you assert seriously or argue or ask us to consider seriously, this is not a religious ceremony based on the Bible and the Lord’s Prayer.

Those with the strongest thought as I doubt would not hesitate to say that.

Francis B. Burch:

Mr. Justice Black, if I may, sir, I would like to say that I do not think it partakes of a religious ceremony.

I think it has religion in it.

Byron R. White:

Mr. Burch, you —

Francis B. Burch:

I think it does not partake of religious instruction.

I think it does not partake of religion as such.

I think it has these other values.

I think that it is intended for the children to know the Lord’s Prayer and to know certain things pertaining to passages from the Bible.

I think it’s intended for a spirit to start off the school day and I think that’s the only basic purpose.

It coincides with religion.

This, I cannot deny.

The —

Earl Warren:

(Inaudible)

Francis B. Burch:

But, Mr. Chief Justice, we take the position that if it serve a secular purpose within itself, the mere fact that it may be sou — it may be framed in religion does not constitute an abridgment of the Establishment Clause.

Earl Warren:

Wouldn’t the — wouldn’t their full religious ceremony constitute or accomplish the same purpose?

Francis B. Burch:

If it’s a full religious ceremony for religion itself?

Earl Warren:

No, no, just to promote the — just to promote the welfare of the students and to put them in a proper frame of mind for their work throughout the day.

Wouldn’t a full religious ceremony accomplish the same purpose?

Francis B. Burch:

It’s conceivable that it could have.

Earl Warren:

And couldn’t it be justified on your argument just as well?

Francis B. Burch:

Again, I say that I think it goes again to a matter of degree.

As this Court has said, what the wall separates is a matter of degree.

Earl Warren:

Could they go at all beyond the reading of the Lord’s Prayer and reading of the Bible —

Francis B. Burch:

I think that — if there’s any comment —

Earl Warren:

— as a matter of degree.

I beg your pardon?

Francis B. Burch:

If there’s any comment that has the — partakes of the nature of instruction or discussion in these opening exercises, that it might well be an abridgment of the First Amendment, the Establishment Clause.

This is one of the factors that we have here.

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

del

Francis B. Burch:

It is not — there is no comment with respect to these prayers.

This is different from Engel.

In the Engel case, the very, and if I may take a moment to mention to the Court, as I know the Court is aware of the record in the Engel case, that on the regent statement on moral and spiritual training in the schools, which was recommended by the Chief Administrative Officer of the New York State Board of Education, they said this.

“In our opinion, the securing of the peace and the safety of our country and our state against such dangers points to the essentiality of teaching our children as set forth in the Declaration of Independence that Almighty God is their creator.

We believe that the Oath of Allegiance be joined with this act of reverence to God.”

And then they follow with the Regent’s Prayer.

We believe that thus constantly confronted with the basic truth of their existence.

The children will be properly prepared to follow the faith of their fathers.

We believe that thus the school will fulfill its high function of supplementing the training of the home, ever intensifying in the child the love of God for parent and for home which is the mark of true character in training.

We believe that this statement will be subscribed to by men — all men of goodwill.

This was clearly intended for the purpose of teaching religion within the opening exercises in the schools.

Earl Warren:

Isn’t that merely paraphrasing?

Francis B. Burch:

This is the statement (Voice Overlap) —

Earl Warren:

Isn’t that merely paraphrasing and enlarging upon the letter of your superintendent?

Francis B. Burch:

I say that the only place that the letter of our superintendent approaches is, in that it says it recognizes the existence of God but it goes on and establishes the salutary effects that this has with respect to the conduct of the school day.

This is what the important part is in our opinion.

How it helps the school to get on with the work of that day.

William J. Brennan, Jr.:

Mr. Burch, Chief Justice (Inaudible) that this, there seems to be no substantial room for dispute that the reading of passages from the Bible and the recital of the Lord’s Prayer are Christian religious exercises.

Now, is there anything in the court opinion below which takes issue of that conclusion here, (Voice Overlap) —

Francis B. Burch:

Mr. Justice Brennan, there is not, and I might say that, again, this is because we are at the disadvantage of being without a record in the case.

William J. Brennan, Jr.:

Well, (Inaudible) —

Francis B. Burch:

In other words, we didn’t have —

William J. Brennan, Jr.:

It didn’t have the concern —

Francis B. Burch:

Excuse me, sir?

William J. Brennan, Jr.:

Chief Judge (Inaudible) did it.

Chief Judge (Inaudible) had no difficulty concluding the religious exercises.

Francis B. Burch:

This was his conclusion.

William J. Brennan, Jr.:

Well, I don’t find anything in the Court opinion which —

Francis B. Burch:

I respectfully suggest that it was a dissenting conclusion.

William J. Brennan, Jr.:

Well, I don’t find anything in the Court opinion which takes issue of that.

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

del

Francis B. Burch:

This was an assumption that he made and that there may have been some basis for his assumption.

We take the position that it does have and if it can be determined or if it can be found that it does have the salutary effect, then we say this rest within the prerogative of the School Board to allow this particular type of morning exercise to be conducted.

John M. Harlan II:

I think it would be helpful if, starting from the premise, that this is a religious exercise.

You could enlighten some of us as to whether you think this case can be distinguished in the other cases in this field that the Court has decided starting with Everson, McCollum, Zorach, Torcaso, Engel, and whether if you think that they — it cannot be whether you’re asking us to overrule those cases and to reexamine this whole problem of the — this aspect of the First Amendment.

Francis B. Burch:

Mr. Justice Harlan —

John M. Harlan II:

Fourteenth Amendment, I beg your pardon.

Francis B. Burch:

I might say this, sir, that to get into the question of the degree of the separation of church and state, we can make without any problem whatsoever a very significant distinction between the exercises in the Baltimore City schools and those which were conducted in New York under the — with the Regents’ prayer.

That clearly was a prayer which was composed by the authorities in question.

This was, as the Court pointed out in Engel, the Book of Common Prayer changed from king to king and queen to king.

This was one of the dangers of letting the State get into the business of actually composing a prayer.

This is what I conceive to be one of the basic reasons why this Court struck down the 22-word prayer in Engel.

In our case, we don’t have a state putting its hands into the composition of a prayer.

This is a prayer, the Lord’s Prayer, traditional, 2000 years old, the Bible going back even beyond, although the versions have changed to somewhat between the Holy Scriptures and the King James Version and in the Douay Version.

In substance, they are basically the same, although there’s some differences in terminology.

We’re talking about a traditional exercise.

We’re talking about a traditional prayer and I would say this.

I would not ask this Court to uphold the right of a state to enter into the field of composing prayers because I say that if it did so, it would be opening the door to the slanting of the prayer to suit the particular area or the particular teacher or the particular jurisdiction in which it is composed.

This, I have no problem with.

I think Engel has no authority for the position that we find ourselves in this case.

Arthur J. Goldberg:

Is your basic point (Inaudible)

Francis B. Burch:

I say that I believe that the most that can be said about Engel is that, as long as it doesn’t get involved in the composition of an official prayer or the sanctioning of an official prayer which we believe the Court truly meant a new prayer, a modern prayer, some prayer that did not have its origins in history.

Some prayer that did not have its origins which had been read as the most widely read prayer.

It has beauty which the — although all of them may have some of the beauty that the Lord’s Prayer has, none of them can get together and put all of that beauty into one prayer.

John M. Harlan II:

What do you do with the —

Francis B. Burch:

These are —

John M. Harlan II:

What do you do with the McCollum case?

Francis B. Burch:

McCollum, I find difficulty with because this was a case where religious instruction was actually conducted on the school premises by religious teachers.

And, the McCollum case was simply a case where the Court says, “We will not permit the taxpayer’s money to be used to permit religious instruction by religious people on the school premises.”

But they said if you go up, as it did in Zorach, if you remove yourself from the premises and they permit — on the release time, to go away where the state’s pocketbook is not involved, then we see no violation.

John M. Harlan II:

I thought you said that religious instruction in your opinion was the thing that differentiated this case from the situation that you have if this was a religious exercise in an avowal of faith.

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

del

Francis B. Burch:

I’m not quite sure I understood your question, Mr. Justice Harlan.

John M. Harlan II:

I thought you said that — you thought your case was different and do not come under the Fourteenth Amendment because this was not a religious exercise but merely an — but merely instruction, ethical instruction.

Francis B. Burch:

No, I said it is — I say it is not instruction.

We don’t say that this is religious instruction.

We say that this is the opportunity for the children at the beginning of the school day to partake a bit of the history of the Bible, to partake a bit of raising their minds as they do in the Lord’s Prayer, to God.

I cannot deny this but that there — that it serves a purpose of inculcating these moral and ethical precepts and values within the children themselves and it gives them a tone for the beginning of the day.

In the — we’re talking about the McCollum, a 45-minute release time program to go into the classroom with religious teachers to study religion, the religion of the choice of the particular student, using the taxpayer’s money for that purpose.

This, I think, was the defect in McCollum.

Torcaso, I have no problem with because Torcaso was simply a case where the oath was held — the oath itself was not held to be bad.

It merely said that you cannot compel the oath to be taken by this particular man who has the right to this particular office except for that oath.

The same thing is true of Barnette.

Arthur J. Goldberg:

What do you say to the fact, according to some, they wouldn’t disagree that it’s more offensive to read the Bible without this version than to discuss the Bible?

Francis B. Burch:

May I say, with all due respect, Mr. Justice Goldberg, I have never heard that statement made and at least it hasn’t been made to me.

Arthur J. Goldberg:

That happens to be the truth, (Voice Overlap) —

Francis B. Burch:

But, I would say this that I think that there can be danger in discussion.

And I was — I recall Mr. Justice Stewart’s question to Mr. Kerpelman about compulsory — a compulsory course in religion compelling all the children to take a course in religion and Mr. Kerpelman said he saw no constitutional abridgment there.

And yet in my own personal opinion, if I may express a personal opinion, I think the danger in that area would be so far greater than the mere recitation of the Lord’s Prayer and reading of passages of the Bible without comment because there is the opportunity for the particular teacher with the particular views to get in and really drive home this religious philosophy that he or she may entertain.

Potter Stewart:

Mr. Burch —

Francis B. Burch:

This is the problem that we see ourselves in.

Where does it lead?

Potter Stewart:

I didn’t mean to interrupt you.

Francis B. Burch:

No, excuse me.

I didn’t know.

Potter Stewart:

You’ve devoted all your time to discussing the question of whether or not this violates the Establishment Clause of the First Amendment insofar as that provision might be incorporated in the Fourteenth Amendment.

You haven’t said a word about —

Francis B. Burch:

The Free Exercise.

Potter Stewart:

— the Free Exercise Clause.

Is somebody going to —

Francis B. Burch:

Mr. Justice Stewart, I was just going to say that Mr. Baker —

Potter Stewart:

Fine, fine.

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

del

Francis B. Burch:

— had intended to address his remarks to that particular question and I see I’ve really gone beyond the time that had been allotted and with the permission of the Court, Mr. Baker will pick up the discussion concerning free exercise.

John M. Harlan II:

(Inaudible) so if you face this problem, frankly, that what these cases really present us with is whether we’re going to reexamine the premises, right or wrong, of our past cases in which these issues have been decided.

Francis B. Burch:

I think this —

Potter Stewart:

Is that an overstatement?

Francis B. Burch:

— case is certainly a question of reexamination and how far did — we want to go.

John M. Harlan II:

Well, isn’t that — that’s the real problem in the case.

Francis B. Burch:

Yes — Mr. Justice Harlan, I don’t think there’s any question that that’s the problem.

John M. Harlan II:

Yes.

I think so, too.

Earl Warren:

I understood you to say you didn’t quarrel with Vitale that you —

Francis B. Burch:

I do not quarrel.

Earl Warren:

— believe that’s perfectly alright; that our decision was alright.

Francis B. Burch:

I do, sir.

Earl Warren:

Well, then why do you want us to reexamine it?

Francis B. Burch:

No.

No I — no, I didn’t mean — not reexamine Vitale.

I meant reexamine the implications of Vitale, the questions which were left unanswered.

In the very beginning of Vitale —

Earl Warren:

Well, that’s alright, but I understood you to answer Mr. Justice Harlan that you want us to reexamine these cases and —

Francis B. Burch:

Only in the light of how far are we ultimately going to go and where does it put us today.

I don’t — I cannot disagree with Vitale.

Byron R. White:

Well, Mr. Burch —

Earl Warren:

Yes.

Byron R. White:

— I thought Mr. Justice Harlan when he started out his question to you on the premise that this was a religious exercise and if you start out on that premise, (Inaudible) was whether or not they didn’t require a reexamination or clarification.

Francis B. Burch:

Well, I —

Byron R. White:

And I understand you to say if you start with that premise, (Voice Overlap) —

Francis B. Burch:

I might say, as — well, I didn’t understand Mr. Justice Harlan’s question to be exactly that.

I thought he said, “Are we, in effect, not confronted in this case with the question of reexamining the whole area and deciding exactly where we are and where we have to go.

This is what I’ve understood the question and I apologize if I answered the question without completely understanding.

Thank you.

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

del

Earl Warren:

Mr. Baker.

George W. Baker, Jr.:

Mr. Chief Justice, may it please the Court.

I would like to comment on the question of the Free Exercise Clause Mr. Justice Stewart asked about.

Actually, there are two facets to the First Amendment as it applies to the statute of the Fourteenth Amendment.

One is the —

Potter Stewart:

Do you concede that both of the provisions of the First Amendment having to do with religion are incorporated in full force in literal terms under the Fourteenth Amendment has restrictions on the states?

George W. Baker, Jr.:

I think this Court as, by prior decisions, has forced us to —

Potter Stewart:

This one as well?

George W. Baker, Jr.:

— concede that, yes, sir.

Potter Stewart:

Well, I just wanted to be sure from what point where you beginning.

George W. Baker, Jr.:

Yes, sir.

We say the — as Mr. Burch has covered the Establishment Clause, relates to the church state in the relationship and to what extent that may go.

The Free Exercise Clause relates to compulsion requiring someone to do something which is contrary to his beliefs.

If the Establishment Clause is violated then, of course, the free exercise may be immaterial.

If the Establishment Clause is not violated, then we say that the Free Exercise Clause is not violated so long as it is not compulsory.

So long as there is a provision under which a person may be excused.

Potter Stewart:

The difficulty here —

George W. Baker, Jr.:

Taking the —

Potter Stewart:

Excuse me.

If I can just state the outsets, then perhaps you can meet my difficulty.

The difficulty I see here is that in the complaint, if that’s what you call it in Maryland or the petition, whatever, it’s alleged that the — that this — that the free exercise of this plaintiff’s religion was interfered with and restrained by the operation of this Board of Education rule, and all you have is a demurrer to that which, by its terms, admits these allegations.

Now, in the Engel against Vitale, that was not a free exercise case, neither were the other cases which my Brother Harlan has been talking about.

George W. Baker, Jr.:

Of course —

Potter Stewart:

They were establishment cases.

But here, you have a clear allegation of the impairment or the interference of the free exercise of this person’s belief or religion, if you will, which is admitted by the demurrer.

George W. Baker, Jr.:

It only admits, if Your Honor please, those matters which are well pleaded and I think that you have to take all of the allegations.

I might say this, that in the lower court’s opinion, you will notice in the order that Judge Prendergast said that since the plaintiff has said — the petitioner has said that it could not improve its case by amending the petition, therefore, it is — the demurrer is sustained without leave to amend but there was that opportunity.

Now, if you take a look at this very situation, the rule is set forth which provides for the excuse.

Now, this is no different than Barnette.

In Barnette, a petitioner said “I am required to pledge allegiance.”

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

del

George W. Baker, Jr.:

This is against my beliefs.

Now, this Court didn’t strike down the oath of allegiance.

All this Court said was that under the Free Exercise Clause, he is entitled to be excused from participation.

Torcaso was a similar thing.

Torcaso — this Court didn’t say, “No, you can’t give an oath of office.”

What it did say, “No, you can’t require him to take an oath of office in order to be a notary public.”

As a matter of fact, Article 1 of the Constitution provides for an oath of office.

If this Court please, I was sworn in as a member of this Court.

I took an oath.

I called upon God to witness the fact that I would uphold the Constitution of the United States and that I would conduct myself properly in this Court.

Now, clearly, I think that if I had had any aversion to taking that oath, that I would not have been required to do it.

As a matter of fact, you could conceive of a situation where a Justice of this Honorable Court might find that it offends his sensibilities to have to be here when it is said at the beginning of the opening exercises of this Court, “God save the United States and this Honorable Court.”

Now, when you say — and this is one of the arguments that’s raised by the petitioner, he says, “Sure, I can walk away.

I can be excused but this holds me out as a dissenter and I lose cast and everything else.”

That same thing could happen to a Justice of this very Court who might object to the invocation, “God save this Honorable Court.”

Suppose he objected to it.

He just wouldn’t come in while that’s being said.Could he then say — and it would be embarrassing to him, I’m — I would imagine.

At least people would say, “He’s different.”

But would he have the right to say that this Court cannot have that invocation because it offends his delicate sensibilities?

I think the answer to that is quite clear.

As long as he has the right to be excused, free exercise is not violated.

William J. Brennan, Jr.:

May I ask —

George W. Baker, Jr.:

He —

William J. Brennan, Jr.:

— Mr. Baker.

This is an interruption, I’m sorry.

Did I understand you to suggest to Mr. Justice Stewart that the only question here by reason of the allegation for this petition and the demurrer is a free exercise question?

George W. Baker, Jr.:

No, sir.

I said both of them are involved —

William J. Brennan, Jr.:

Yes.

George W. Baker, Jr.:

But that if you —

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

del

William J. Brennan, Jr.:

But the establishment question is also here.

George W. Baker, Jr.:

Yes, sir.

William J. Brennan, Jr.:

— on these allegations?

George W. Baker, Jr.:

Yes, sir.

But I say, if you get beyond the Establishment Clause, then the only thing — then that — if it doesn’t violate the Establishment Clause then under the Free Exercise Clause, there’s no violation as long as you have a right to be excused.

Potter Stewart:

Well, as I — I know that there is that right expressed in the Amendment, the 1960 Amendment to the rules of the School Board, but these allegations, let’s say in effect, that’s a phony.

Actually, we don’t.

We’re not free of compulsion and I should think that this is admitted by your demurrer and this would require a trial to see just what the facts were; what the compulsions were.

William J. Brennan, Jr.:

Well, it would be a conclusion —

Potter Stewart:

Upon an Atheist to conform to this thing.

No allegation that no one has permitted him to be excused.

As a matter of fact, the petition alleges that after a complaint was made, the rule was amended whereby he was permitted to be excused.

Now, a — to say that we are compelled without any facts is really a conclusion of law particularly when you have already set forth a provision in the rule that you can be excused.

Now, if there’s any abusiveness, if there’s any coercion that he can’t be excused, then I would certainly think that that would be true, that you would have a different case entirely before this Court.

Arthur J. Goldberg:

(Inaudible)

George W. Baker, Jr.:

Yes, sir, and we —

Arthur J. Goldberg:

You demurred it?

George W. Baker, Jr.:

We demurred it and even — let me say this, that anyone who dissents runs the risk of disapproval.

Justice Jackson — Mr. Justice Jackson in McCollum expressed, I think, the rule there so very well when he said, “It maybe doubted whether the Constitution, which of course protects the right to dissent, can be construed also to protect one from the embarrassment that attends nonconformity whether in religion, politics, behavior, or address.”

Mr. Justice Douglas in Zorach, after referring to a similar rule, said that if you didn’t — if you did away with the whole thing that would be preferring those who believe in no religion over those who do believe.

(Inaudible)

Potter Stewart:

That had to do with the establ — excuse me, excuse me.

Arthur J. Goldberg:

You say assuming this is true, the fact that a pupil is excused satisfies the free religion clause, isn’t that (Inaudible)

George W. Baker, Jr.:

Yes, sir.

I would, before concluding my time, like to point out to this Court what the possible consequences of the petitioner’s view would lead to.

As Mr. Justice Douglas said in Zorach, we are a religious people whose institutions presuppose a Supreme Being.

If the Court fails to draw the line at this case, there’s not much left.

A Pandora’s Box of litigation will be opened with inevitable confusion and with the ultimate result that the Court will be required to remove every vestige of our religious traditions from public life.

Now, I’m not suggesting that these would all happen immediately, but those who now clamor for getting rid of these opening exercises won’t stop if they have a victory here.

They would continue.Justice Frank — Mr. Justice Frankfurter said in dissenting in Barnette, “I am not burrowing trouble by dumb breaking these issues nor am I parading horrible examples of the consequences of this decision, but I’m aware that we must decide the case before us, not some other case.

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

del

George W. Baker, Jr.:

But that does not mean that a case is disassociated from the past and unrelated to the future.

We must decide this case with due regard with what went before and no less regard with what may come after.”

Hugo L. Black:

What do you think could come after if you should win?

George W. Baker, Jr.:

I think you’d have — you’d have the question as to the use of coins, “In God we trust.”

Hugo L. Black:

What do you think would come after it in the reference to the school ceremony?

If — is there any reason why you can have 3 minutes, you couldn’t have 40?

Any reason if you could have 40, why you couldn’t have 6 hours?

George W. Baker, Jr.:

Well, that — of course, you go back to —

Hugo L. Black:

And why you shouldn’t have all of them taken from the sacred books of one religion rather than another?

George W. Baker, Jr.:

Mr. Justice Black, it’s a question of the purpose.

As Mr. Burch mentioned —

Hugo L. Black:

I understood you were invoking the consequences as to what might happen if the decision remains one way or the other.

George W. Baker, Jr.:

I think if the decision is made that you can’t have this — as a part of the opening exercises that from there on —

Hugo L. Black:

If you could have it in the opening exercises, why can’t you continue to have it during the whole day?

Why can’t you pick out all your religious sacred documents from one particular religion or one particular sect of one religion?

George W. Baker, Jr.:

Because if there — that then would be an abuse.

The purpose is the same as the implication in this Court, “God save this United States and this Honorable Court.”

Hugo L. Black:

I’ve heard that before.

George W. Baker, Jr.:

It’s the same thing with the students.

Sir?

Hugo L. Black:

I’ve heard that a million times.

That’s not your argument.

George W. Baker, Jr.:

Well, but if you went on for an hour with that, it would be the same thing, if Your Honor please.

Thank you.

Earl Warren:

Attorney General Finan.

Thomas B. Finan:

May it please the Court.

I personally want to thank Mr. Burch for giving us a portion of his time to intervene here as amicus curiae and also to thank the Attorneys General of some 18 states of our sister states in the union who have joined with us as amicus curiae.

The appendix to our brief also contains a compilation of some-39 sister states who have similar provisions concerning the devotional exercise of some type in public schools.

Mr. Chief Justice, a moment ago asked about Hawaii and the appendix there as a reference to the rule in Hawaii which does permit a devotional exercise but forbids the teaching of religion in the public schools.

We go along with the city solicitors from Baltimore’s contention that this is primarily an exercise within the school to create a climate of wholesomeness, of moral and ethical standard rather than essentially that of religious service.

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

del

Thomas B. Finan:

However, we will go further than his contention in that regard.

I’ll put it this way.

We concur insofar as he goes in that.

We will go further and state that we feel before this Court, as again, the situation as to whether they should reevaluate this entire position which they have taken, including the position of the Court in the Engel case.

We feel this can be distinguished.

I disagree with Mr. Burch and I didn’t agree with the Court’s conclusion in the Engel case but; nonetheless, we feel that this case can be distinguished; however, I do feel that this line of cases are bringing before the Court a question of religion laid bare past its bones to its very essence.

I think the Court is forced into the conclusion of two concepts whether it will consider that nontheism should override theism.

The opponents in this case, the petitioners have, of their own volition and according to the decision, I think, of the Court particularly in the Torcaso case, have equated nontheism or atheism with a religion which it is entitled to that position under the umbrella of the First Amendment to the Constitution of the United States.

Now, assuming that it is, then we have two concepts which are so diametrically imposed it to be neutrally exclusive.

And although the petitioner would have us believe that there is a ground of neutralism, there is a vacuum, as it were, which could be maintained in this field so that nobody would be injured, so that nobody’s sensibilities would be stepped upon.

We assert that that is a fallacy, that once you say that you must remove the idea of theism and for what are — time to elaborate, let’s call this a theistic approach or a theistic climate in the school or to — when you do away with that you are in effect giving in and surrendering to those who want a nontheistic climate, and that nontheistic climate is in effect, by indirection, giving a facial sanction to their religion, which is nontheism.

And I —

Earl Warren:

Do we have to decide this case on the basis of theism or nontheism?

Aren’t there very large religious groups who believe is fervently in a God as those who composed this procedure?

Thomas B. Finan:

Believe as fervently —

Earl Warren:

Were opposed to this case?

Thomas B. Finan:

Believe as fervently in much, Mr. Justice?

Earl Warren:

In God?

Thomas B. Finan:

Yes.

Earl Warren:

That’s a basis of theism, is it not?

Aren’t there people who were opposed to this, who were just as fervently — fervent in their belief in God as are those who prescribed this oath and who yet oppose it?

Why do we have to make it an issue between Atheism and Christianity?

Thomas B. Finan:

Well, I don’t think it’s necessarily of Atheism and Christianity —

Earl Warren:

We have briefs amicus curiae in this case.

Thomas B. Finan:

That is correct, Mr. Chief —

Earl Warren:

There’s a brief of the Synagogue Council of America and National Community Relations Advisory Council and —

Thomas B. Finan:

That is correct, Mr. —

Earl Warren:

— there are some millions of people of that faith in this country so —

Thomas B. Finan:

Correct, Mr. Chief Justice —

Earl Warren:

They oppose it as fervently as these people who happen to be Atheist —

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

del

Thomas B. Finan:

Correct.

Earl Warren:

— so why do we have to put it in that context?

Thomas B. Finan:

Theism is broader than Christianity.

Earl Warren:

I beg your pardon?

Thomas B. Finan:

You said Atheism as advert to Christianity.

My point is theism is broader than Christian —

Earl Warren:

Yes.

Thomas B. Finan:

— than the concept of Christianity.

Earl Warren:

But by reading the Lord’s Prayer and reading the King James Version of the Bible, we put the Christian concept of theism onto it, do we not?

Thomas B. Finan:

Well, that is debatable because you can read in the Kaddish which is an ancient book of the Hebrews almost verbatim.

In fact, unless someone listens very attentively, they would not know the difference between prayers in the Kaddish from the Lord’s Prayer, which goes —

Hugo L. Black:

Why not use that one then?

Thomas B. Finan:

Pardon?

Hugo L. Black:

Why not use that one then?

Thomas B. Finan:

I’m sure they would — further, would be no objection.

I would just like to conclude with this regard, my time is running short, if I may.

The Court asked Mr. Baker what would be the next thing to go as it were, and I submit that the Barnette case which the Court is familiar was tried in 1943 and that was the Salute to the Flag case up in West Virginia.

And as a result of that case, it’s been held that — or at least the construction placed on it is that to pledge allegiance to the flag of the United States can be a part of the ritual in the public schools as long as those who do not wish to take it can be excluded.

Now, in 1954, the Congress of the United States inserted in that Pledge of Allegiance the clause, “One Nation under God” and that is what is in the official Pledge of Allegiance to the Flag today.

There’s been no case since that was inserted, to my knowledge, by the Congress.

And I state — that I cannot see the distinction between a school system and this prevails in practically every Board of Education in the United States requiring a child to — or at least not requiring the child but proposing that exercise as open in the morning with a salute to the flag of the United States which carries in it the clause, “One Nation under God.”

Potter Stewart:

Mr. Attorney General —

Thomas B. Finan:

Because that is the basic objection to which these people object right now as a recognition of a Supreme Being of what I call theism, I think even the theos would come under the broad term of theism.

But, I cannot see any difference between that case and what we have before the Court today because you have the same outlet of freedom from exposure by walking out of the room, and it’s true that this is in a more formal style, but it has still the same recognition of a deity which is the basis of their objection rather than anything else and —

Potter Stewart:

Mr. Attorney General, let’s assume that we agreed that everything was — everything you said with respect to the Establishment Clause and that’s all that was involved in the — in the Engel versus Vitale, do you say you disagree with that decision, as you — perhaps, now I did also?

But, you have a different case here.

You have, here, allegations in a complaint of the interference with the free exercise of this petitioner’s religion.

That was completely absent in the Engel case, completely.

That case involved establishment and only establishment.

But here, you have a free exercise allegation which is admitted by the demurrer, and it says — that which says, in effect, that despite the amendment to the rule of 1960 there are still compulsions upon this person.

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

del

Potter Stewart:

In Engel against Vitale, it was held by the New York courts that the — there had to be provision under that system for the complete freedom of compulsion, including freedom from any psychological compulsion.

Thomas B. Finan:

Mr. Justice, I think the answer to that might be in the proceedings or pleading in practice procedure in Maryland.

We assume that all things that are well pleaded or admitted by a demurrer and in that admission, not only are the bare facts as recited in the petitioner’s bill of complaint, but you also must take into effect all the exhibits which are filed at the time that the demurrer is likewise filed.

And, at that posture of the case, the Board of Education, in its answer were well aware as a part of the exhibits was the provision under Rule 6 that he did not have to stay in the classroom when this was recited, that he could walk out of the classroom.

And knowing that that was a part and parcel of the rule, reading that also into the bill of complaint, the answer I think gets around the objection which, if I may, that your — the — Mr. Justice have just mentioned.

At least that’s to my mind is the fact that it’s — it was a demurrable bill of complaint when you read into the bill of complaint this Rule 6 which is a part of the exhibits and was filed with the answer.

Potter Stewart:

But, its part isn’t it of the — of the complaint, actually.Perhaps not, but I know it’s a part of the pleading.

Earl Warren:

Did your Supreme Court based its decision on that ground?

Thomas B. Finan:

Your Honor, Justice Horne, who rendered the majority opinion, based it primarily on the grounds — he mentioned that but based it primarily on the grounds that he placed this exercise in the same category as the exercise which we used to open the Maryland legislature which Congress uses to open the branch of the House in Senate.

In fact, they used those specific analogies.

Earl Warren:

In other words, he treated the merits of the case.

Thomas B. Finan:

Right.

Earl Warren:

Yes.

Byron R. White:

Mr. Attorney General, as I read the complaint, it already contains an allegation that the rule was amended so as to release him from participation of these exercises.

And if that — that allegation that he nevertheless says, that his freedom of his religion has been restrained and that is the allegation which was admitted by the demurrer, even right in the face of his own allegation that he had been released from the exercises.

Thomas B. Finan:

If you please, Mr. Justice, I don’t believe that the two allegations that he has there are consistent.

They could be released from it.

I have to stay there and he still (Voice Overlap) —

Byron R. White:

Well, he makes allegations right on the — right on this that in spite of his being released from the exercises, that —

Thomas B. Finan:

Well, that would not be —

Byron R. White:

That he was subjected to some harm and these allegations were admitted.

Thomas B. Finan:

Well, all well pleaded allegations are admitted, Mr. Justice, and it’s our contention that there would be an inconsistency between the allegation where he says that his religion, a right to practice it was interfered with and the fact that he could be excused from the service.

Byron R. White:

Well, let me ask you one other thing.

Do you really see a great deal of difference between the — as far as it’s being a religious exercise or not, between the prayer in Vitale and the prayer here, regardless of its source, I mean, just as it’s a kind — the kind of an occasion it was?

Thomas B. Finan:

Well, of course, Mr. Justice Black, in the Vitale case said that any prayer, any official prayer composed by a group of officials or sanctioned by the State as an official prayer.

Byron R. White:

Yes, but that’s assuming that it’s a pray — that it’s a religious item and you say — I gather, you join with Baltimore in saying that it wasn’t a religious exercise at all.

Thomas B. Finan:

No, I beg to differ, Mr. Justice.

I concur in their — stating this is not primarily a religious exercise.

It is part of our heritage and traditions, but I go further than that and would state that, assuming it is or was a religious exercise, I still feel (Voice Overlap) —

Byron R. White:

So you say it wasn’t part of a religious exercise.

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

del

Thomas B. Finan:

Right.

Byron R. White:

And, is it as much of a religious exercise as it was in Vitale?

Thomas B. Finan:

Yes, I definitely feel —

Byron R. White:

There’s really no distinction in terms of the kind of an exercise this was between Vitale and this case.

Thomas B. Finan:

No.

I think there — the two cases can be distinguished —

Byron R. White:

Oh, yes, I know (Voice Overlap) —

Thomas B. Finan:

— but I think they’re both involved in religious exercise.

They’re both involved in a religious exercise.

In the Vitale case, you had a prayer —

Byron R. White:

I understand that.

Thomas B. Finan:

— composed.

And —

Byron R. White:

Of course, —

Thomas B. Finan:

— this —

Byron R. White:

— Vitale — the Vitale opinion said, “The state drafted or state sanctioned,” didn’t it?

Thomas B. Finan:

I said, “A straight — State drafted or State sanctioned official prayer.”

Now, the question would be, maybe it’s tautology to say “official prayer”, again goes back, it means a prayer composed by officials, which was one of the basis that we thought perhaps distinguished it.

Byron R. White:

But I suppose the School Board’s rule here at least sanctioned the use of the King James Version of the Bible.

Thomas B. Finan:

It sanctioned that, yes.

It said — Or the Douay maybe —

Byron R. White:

Or sanctioned the Lord’s Prayer.

Thomas B. Finan:

That is correct.

Byron R. White:

Yes.

Thomas B. Finan:

But the question is, these are prayers of tradition.

There — they were never any official prayer of any sect or any group.

Potter Stewart:

These are clearly sectarian, unlike —

Thomas B. Finan:

That’s correct.

Potter Stewart:

— unlike the prayer in Engel, which is (Inaudible)

Thomas B. Finan:

That’s right, Mr. Justice.

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

del

Thomas B. Finan:

That’s our situation on it.

Byron R. White:

There’d be very little sense of excusing anyone from the prayer.

It seems to me, if it wasn’t — if somebody didn’t have a feeling that it was a sectarian situation or there would be a very little reason talking about the King James Version of the Bible or the Douay Version of the Lord’s Prayer.

In the rule, if there wasn’t some feeling that it was giving others the permission to use the Douay Version if they wanted to.

It seems to me in itself, to be a recognition of this — that has some sectarian aspects to it.

Thomas B. Finan:

Well, Mr. Justice, I don’t think that sectarian the least, I wouldn’t agree to that definition as employed by the Court.

I feel that we must admit and I freely admit that there was a theistic background in this exercise which is — which was objectionable to the petitioners.

I mention that because I think that perhaps, theism and sectarianism are two different terms.

Byron R. White:

I agree with you but nevertheless, in the School Board’s rule which was promulgated, people were given permission to use different versions of the Bible.

Thomas B. Finan:

That’s right.

Well, that comes on the overall theory that was — that we have in the case says that this was an exercise in which the students primarily indicate their belief in God and His benediction on what they’re doing.

Byron R. White:

So, you’re saying — what you’re really suggesting is that the only people who should’ve — who ever should’ve been — felt any urge to excuse themselves from this operation would be Atheists.

Thomas B. Finan:

That’s right.

William J. Brennan, Jr.:

Is that the reason, you think, the provisions excused them, had the petitioners in mind to keep (Inaudible)

Thomas B. Finan:

Your Honor — Mr. Justice, I would certainly think the petition would indicate that that’s the main reason that they object to this.

William J. Brennan, Jr.:

No, I say, “Those who make the provision for the excuse have only Atheist in mind?”

Thomas B. Finan:

No, Your Honor, anybody who might have some —

William J. Brennan, Jr.:

Perhaps they didn’t like the Protestant version or Protestants who didn’t like —

Thomas B. Finan:

That’s right.

William J. Brennan, Jr.:

— Douay version.

Thomas B. Finan:

That’s correct.

Byron R. White:

Schools who didn’t like the Holy Bible.

Thomas B. Finan:

That’s correct.

I might add that the actual practice of this, as Mr. Burch started to commit — comment to the Court, the usual practices, it’s rotated with each child, each day, they either lead the prayer or read the Bible and they’re quite likely there might be some child who might not want to read the Bible.

Arthur J. Goldberg:

(Inaudible)

Thomas B. Finan:

Yes.

Well, Mr. Justice, on the premise that if the people who composed the School Board in that particular area felt that that expressed the majority wish of the people that those who did not conform to the Mormon faith or who felt that reading of the Mormons — Book of Mormon was objectable, I’m sure there’s many parts of it that practically everybody would subscribe to that they are free to walk out.

I think that is the basic element that we have in this case that they are free to excuse themselves.

William O. Douglas:

Then the big contest would be which church could get — control the School Board, I suppose.

Thomas B. Finan:

Mr. Justice, let me state this.

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

del

Hugo L. Black:

(Inaudible) — are you suggesting —

Thomas B. Finan:

I think that — I doubt very much that there would be any race in that direction because I think, primarily, people feel that if they — children can have some religious overtones, take children that are in — what are we going to do with children who are in religious orphanages and our correctional institutions?

What — we go along with completely removing any mention or anybody on the public payroll in any public institution, anything about God.

Hugo L. Black:

You’re suggesting in effect, are you not, the Constitution leaves it open for the States to leave it to local options in each local community as to which particular brand of religion, which kind of religion, will be read and taught in the school.

It’s kind of a local option.

If the majority wants one, they could get it.

The others can walk out.

Thomas B. Finan:

Well, Mr. Justice —

Hugo L. Black:

That sounds to me like it was your suggesting a local option.

Thomas B. Finan:

Mr. Justice, let me state this.

I think we can carry any example to an extreme but I certainly feel that, in the common parlance of men, that we all have certain concepts such as, I mentioned, recognized works which recognized a deity, Book of Mormon, the Koran, the Bible.

Hugo L. Black:

What would you think about its chance about being read in Baltimore?

Thomas B. Finan:

The what’s (Inaudible)?

Hugo L. Black:

What would you think about the chance of having the Book of Mormon substituted for the King James Version of the Bible in Baltimore?

Thomas B. Finan:

Mr. Justice (Inaudible) would compel me if there was — there had to be a choice between the two.He would probably stick to the Bible.

But I would say this that the Board of Education of Baltimore City might well go along with the reading of the Koran, the Bible and the Book of Mormon.

Hugo L. Black:

Do you mean that’s theoretically possible?

Thomas B. Finan:

I would say that — Mr. Justice, that this rule was written back in 1906.

It was amended later to allow an excuse.

I feel that the basic thing that people feel today is that we must not set up a fetish against mentioning anything about religion in an exercise in a public school.

I think that the public is willing —

Hugo L. Black:

I do not understand the other gentlemen to say that they shouldn’t mention anything about religion.

I understood them to say that it was alright to teach religion as a subject.

Their objection is to the fact that you pick out, I may say two things which I’ve known about from my earliest inferences, which I could agree with you easily, should have a wonderful effect on people who read them and recite them.

But, other people don’t feel that way.

What you have picked out, these two particular things: the Bible, King James Version, and the Lord’s Prayer.

It’s one can hardly mention without reverence, at least I believe as I did.

You picked them out and say people must, into this school, either listen to them and participate in or walk out.

Now, why can’t you do that with reference to the Mormons if they want to where they are the majority, or any other by those people in the Government?

Thomas B. Finan:

I would concur with the Court and —

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

del

Hugo L. Black:

That’s a local option in determining what — which particular religion will be taught in each particular community.

Thomas B. Finan:

No, if it is sincere representation of that area —

Earl Warren:

But General, that — let’s take a very practical situation.

Again, in Hawaii, where there are a great many Buddhists.

Let us say there’s a school where there are 51 Buddhist children and 49 Christian children and because of the majority, the Buddhist children is determined by the school to have a Buddhist ceremony comparable to this Christian ceremony that we have here.

Would you think because they’re in the majority that the 49% of them that are Christians in that school would have to walk out?

Thomas B. Finan:

They would have the right to and I would —

Earl Warren:

And you would — do you think they would have the right to have such a ceremony as a matter of school law?

Thomas B. Finan:

Yes, Mr. Justice, because I feel that it is essential that we keep away from a complete secularism in our outlet to this thing.

And if the Christians who were there wanted to — have the right which they would under the Constitution, that is the sacred right as a minority which they would be in that instance would say — would have, the right to exclude themselves, the right not to be subjected to them.

They have that right.

I see no reason why you cannot reconcile and why it is not compatible to — under our Constitution to permit such a practice.

Hugo L. Black:

Would you be willing to say if the State should go further in that instance and release all of them from paying any part of taxes that went into support of the school?

Thomas B. Finan:

Well, they would still be educated by the school.

Hugo L. Black:

Not if they will — but they would walk out that they didn’t want that part at all.

Thomas B. Finan:

Well, if they’d only walk out for that portion —

Hugo L. Black:

Could they be release from taxes to carry out these views if the majority wanted, which they didn’t want?

Thomas B. Finan:

My children had never gone to the public schools and I’m not released from taxes.

So, I don’t think they should be released from taxes.

Hugo L. Black:

But they’ve — they have not gone there through choice.

Thomas B. Finan:

Pardon?

Hugo L. Black:

They have not gone there through choice.

The public schools were open to your children.

Thomas B. Finan:

Well, you would exclude yourself —

Hugo L. Black:

But they were open to your children.

Thomas B. Finan:

That’s right.

I don’t — I might just say this, if I may, in conclusion and that is that, as I understand the fact that the petitioners would allow the Bible to be read as a work of literature or as a work of ancient religion.

And our basic documents such as the Declaration of Independence to be read as a paper of state, yet our — if I understand that theory correctly, they would still object if we would dwell upon the Declaration of Independence and its all men being created under God and so forth, but the implication of a creator, if we were to read that as a source of inspiration to awaken in us a spurs of belief that we’re one nation under God, then that paper in itself would be objectionable only if it’s looked upon as an abstract pure state paper, the same way with the Bible as a piece of literature or ancient history.

Earl Warren:

Mr. Kerpelman.

Leonard J. Kerpelman:

Mr. Chief Justice.

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

del

Leonard J. Kerpelman:

Your Honors.

William O. Douglas:

Would your argument be the same if a Quaker pattern was followed in the — all students’ request to remain silent for a minute or two minutes or three minutes?

Leonard J. Kerpelman:

Your Honor, a question which is perhaps involved is a question of standing.

Now, as I understand it, standing —

William O. Douglas:

That wasn’t my question.

Leonard J. Kerpelman:

Well, I was going to say this, Your Honor.

The Quaker ceremony would, it seems to me, be constitutional because it could — I don’t see how it could possibly cause anyone any detriment.

He does not have to stand up and profess a belief or disbelief in any religion.

Potter Stewart:

Your client could stand there and think about his disbelief in God.

Leonard J. Kerpelman:

Yes, he could, Mr. Stewart —

William O. Douglas:

Yes.

Leonard J. Kerpelman:

— Mr. Justice.

And, I do not think that that would be unconstitutional.

I’ve gone to the question of standing, perhaps it’s unnecessary but let me —

Arthur J. Goldberg:

If it were labeled the Quaker ceremony, would it be unconstitutional?

Leonard J. Kerpelman:

If it were labeled the Quaker ceremony, it would be clearly unconstitutional, Mr. Justice Goldberg.

I understood the question pleaded.

We had this Quaker type of ceremony, not denominated as any such thing.

McGowan, I had thought indicated that if an establishment of religion is made by the State and then some person suffers economic detriment, he would have standing to come into Court and complain.

I thought it also held that if the Sabbath observance law interfered with the free exercise of religion, it didn’t serve a circular — a secular purpose primarily, he could come in and complain.

That was my understanding of it.

I understood that the question of whether it was the Establishment Clause or the Free Exercise Clause goes mainly to the question of standing, and that was the reason that I was contending, Your Honors please, that both clauses apply to my client.

The establishment has been made.

It has caused him detriment.

He has standing to complain.

Also, his free exercise of religion has been interfered with.

Your Honors had opposed the question of, I think, of Mr. Justice Harlan, whether or not a reevaluation of the cases on this particular point was perhaps called for.

Well, if Your Honors please, as a practicing member of the Bar of this Court and of my state court, I’m very proud of the line of cases as they now stand.

I think that what is more needed — what there is more of a need for is a reevaluation of the ethical and democratic principles which these cases set forth.

I think there’s more of a need for charity and love on the part of the people who are in the majority and who have, probably unknowing to themselves, been offending the minority.

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

del

Leonard J. Kerpelman:

The democratic thing for them to do, the ethical thing to do, the religious thing for them to do is clearly to not make such a bone of contention of this case.

After all, they’re overlooking the fact —

Potter Stewart:

You’re getting somewhat outside the Constitution.

Leonard J. Kerpelman:

So I am, Mr. Justice.

I’m sorry.

But the case of course, is a case which it so happens, effects everyone by a small modicum, and therefore, there’s a lot of interest in this case, and therefore, a lot of people who are not professionally learned in the law, had misconstrued the precedence to this case.

And they go outside the Constitution in their discomfort with the line of precedence up to this time.

I feel that if they understood what this case on behalf of the petitioners does not say that they would not be so alarmed and upset.

I would like to speak for a moment on the question of the demurrer which was filed in this case and whether it admits the allegations, and I want to do that simply by referring to page 45 of the record which is the minority opinion, page 45, of the Maryland Court of Appeals and that was a 4 to 3 decision.

The minority is the only one they treated of this question as to whether the allegations were in truth, admitted by the demurer under Maryland rules of pleading.

They said, as to the first of these questions, it seems to me that under our ordinary rules of pleading the allegations of the petition are not so insubstantial as to be brushed aside as mere conclusions of the pleader and that they are sufficient on demurrer.

In that same paragraph, incidentally —

Potter Stewart:

What page?

Leonard J. Kerpelman:

45, Mr. Justice.

Potter Stewart:

Thank you.

Leonard J. Kerpelman:

Second paragraph.

In that same paragraph, the next sentence in that paragraph states that — something to the effect that Brown versus Board of Education recognized the psychological effects on children when they are subjected to segregation.

I had the privileges as many of us have, of attending the public schools and I really mean the privilege as a member of minority group.

It — I feel has done things for my character, but I’m sure that the psychiatrist got me on with this couch, he tell me that he had also done things to his psyche.

Some of the things involved in this case are very subtle psychological matters.

For example, I have a young daughter and she comes home from school and due to the conduct of this Maryland ceremony, she has the belief that Jesus is the Son of God.

It so happens that I would prefer she did not have that belief.

It doesn’t worry me too much.She’ll get over it.

She will have her Sunday school training, but I would be much happier if the schools would refrain from this particular ceremony.

Many people feel that way.

The point is that William Murray represents Catholics perhaps, in a Protestant area where the Catholics find the Douay Version of the — King James Version of the Bible offensive.

William Murray, the petitioner, represents Protestants in a Catholic area where perhaps, the Catholics decide to use the Douay Version of the Bible.

William Murray represents humanists who have filed an amicus brief here.

He represents minority groups of numerous sorts.

The Synagogue Council of America has filed an amicus brief on behalf of members of the Jewish faith.

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

del

John M. Harlan II:

How many — I think I remember a figure (Inaudible) of this religious sect (Inaudible)

Is that the (Inaudible) right?

Leonard J. Kerpelman:

I can’t recall that thing, Your Honor.

It was mentioned in a case of this Court.

I can’t recall it.

John M. Harlan II:

I think we had it at the time —

Leonard J. Kerpelman:

267, which was the first.

John M. Harlan II:

267, something to that order.

Leonard J. Kerpelman:

Yes.

And the majority likes to go along thinking that they’re only doing what’s best for everybody.

They overlooked the fact that because they are the majority, the minority is there long-suffering and quiet and it’s only when William Murray comes along that this thing raises its head, and the fact that the case was brought by an Atheist, which is perhaps a very small sect in this country does not mean that there are not other groups as evidenced by the amicus briefs, who feel the same way.

Arthur J. Goldberg:

Its part of this exercise (Inaudible)

Leonard J. Kerpelman:

Your Honor, I have been a teacher in the Baltimore public schools for about six years while I was going to law school and I’ve also been a student in the public schools.

That’s not usually done.

What we had done in — as a matter of fact, was that either the teacher or a student would lead the class in reciting in unison the Lord’s Prayer and then reading a section from the Bible.

Most teachers will either pick a section of the Bible, which I did myself when I was teaching, or they would allow a child to do so invariably and the Bibles which were provided for us were the King James Bible.

Invariably, in my experience, I’ve only seen the King James Bible used.

I’ve only seen the King James Bible Version of the Lord’s Prayer used.

Whether it’s used anywhere else, I don’t know, but I’ve never seen —

Arthur J. Goldberg:

(Inaudible)

Leonard J. Kerpelman:

Well, it’s pretty strongly a religious verse, “Thus be it ever when free men shall stand”, is that the verse, Your Honor?

The — it’s my favorite verse, it so happens.

It certainly has a highly theistic significance.

I suppose that they would object to having its song as a ceremony set forth by the school and it seems to me that they would be in good constitutional ground.

Potter Stewart:

If you’re right about the — about this case in the establishment —

Leonard J. Kerpelman:

Yes, Your Honor.

Potter Stewart:

— phase of it —

Leonard J. Kerpelman:

Well, that —

Potter Stewart:

— then I would agree with you.

Leonard J. Kerpelman:

Yes, Your Honor.

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

del

Leonard J. Kerpelman:

Thank you.

Potter Stewart:

But, assume you’re — assume one should disagree with your position that these rules of the School Board violate the Establishment Clause of the First Amendment as incorporated in the Fourteenth, but should agree that on the allegations of your complaint these rules do violate, in your client’s case, the Free Exercise Clause.

I suppose what would be in order would be a remand for a trial, wouldn’t it, to see just what compulsions there are, psychological or otherwise —

Leonard J. Kerpelman:

Yes, Your Honor.

We had no difficulty —

Potter Stewart:

— to conform.

Leonard J. Kerpelman:

— whatever improving them.

The demurrer —

Potter Stewart:

Well, that’s not up to us —

Leonard J. Kerpelman:

Yes.

Potter Stewart:

— where the — whether —

Leonard J. Kerpelman:

Yes, Mr. Justice.

Potter Stewart:

— it should be difficult or easy for you to prove them or from the other side to disprove them.

Leonard J. Kerpelman:

Yes.

Potter Stewart:

But that would be the appropriate thing to do, would it not?

Leonard J. Kerpelman:

Yes, Your Honor, but then, to quote a sage, we would have to win their weary way back here again probably after the case was heard.

It was fortunate for us that the case was heard on demurrer.

It saved us a great deal of expense in printing up the record.

But the case, I am quite sure, would be no different in its aspect.

Arthur J. Goldberg:

Aren’t you arguing the law as to this (Inaudible) you’re indicating that de minimis rule and, if we agree, you can still contest the religious contemplation that provided free exercise or the Establishment Clause would be involved?

Leonard J. Kerpelman:

I can’t go along with that, if Your Honor please, because here is a prayer which is taken —

Arthur J. Goldberg:

No, no.

I understand it, but I (Inaudible) the question I put to you about the National Anthem.

Leonard J. Kerpelman:

Oh, yes, Your Honor, yes.

Arthur J. Goldberg:

The song.

Leonard J. Kerpelman:

Yes, I think we would have new standing if we had no detriment, but we definitely have suffered a detriment.

Potter Stewart:

What’s your detriment, speaking purely now of the Establishment Clause?

What is your detriment?

Leonard J. Kerpelman:

A religion has been established and as a result of the establishment of that religion, my client has been treated with aversion —

Potter Stewart:

Well, now, you’re getting into something else, aren’t you?

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

del

Leonard J. Kerpelman:

I beg your pardon.

Am I, Your Honor?

Potter Stewart:

Well, I’m just asking you.

The Establishment Clause itself, what — how did — what detriment is there?

In other words (Voice Overlap) —

Leonard J. Kerpelman:

Well Your Honor, we contend.

Now, I may be entirely wrong on my —

Potter Stewart:

I’m not talking about standing, in other words.

Leonard J. Kerpelman:

Well, it seems to me that the — that if this prayer is a sectarian prayer then it’s an establishment of religion.

Potter Stewart:

Yes.

And how does that in — in and of itself, cause a detriment to your client?

Leonard J. Kerpelman:

It cause a detriment — causes a detriment to my client by having him singled out and denominated as one who’s — does not believe in this particular religion.

Potter Stewart:

Well, that — because it interferes with his free exercise.

Leonard J. Kerpelman:

No, because he doesn’t believe in it.

Potter Stewart:

Well, then, what — then how does it — well, how is it a detriment, as a taxpayer?

Leonard J. Kerpelman:

We don’t contend that a — the detriment is as a taxpayer.

Now, we’ve been rather stubborn about that.

I think that support of the schools doesn’t consist in six cents added to the tax rate, it consists in trust, in confidence, in the feeling that you can send your children to the schools and they’ll get the education you want.

They won’t have dogmas thrust upon them.

We don’t feel that that is — we certainly have not alleged or shown any increase in the tax rate, from the supplying of the King James Bible and the time it takes, the detriment or the psychological effects, the young William Murray who has been abused because of his belief.

Potter Stewart:

And this — then —

Leonard J. Kerpelman:

If —

Potter Stewart:

— you get back to the free exercise.

Leonard J. Kerpelman:

Well, I don’t understand it, Your Honor.

If the establishment of religion had not been made, he would not have been abused.

Potter Stewart:

Well, wouldn’t you agree with this?

That under the Constitution, it would — no state could — and no city, no county could establish a church even though 100% of the population in that political unit wanted to do it and there were no non-conformers.

They all wanted to do it.

Still, it would be unconstitutional, wouldn’t it?

Leonard J. Kerpelman:

It would be unconstitutional, but who would have standing to challenge it?

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

del

Potter Stewart:

Well, that’s what I’m —

Leonard J. Kerpelman:

Yes.

Potter Stewart:

— that’s my question.

Leonard J. Kerpelman:

Well, no one would have standing to challenge it if they — if there were no members of any minority.

But with these 267 sects in the United States, we —

Potter Stewart:

Whether without — whether without dissenters, it’s absolutely constitutionally invalid for a county, assuming that county were 100% Methodist, all of them wanted an official Methodist church and established one in Smith County, Maryland or X-County, New Jersey, that would be completely invalid constitutionally, wouldn’t it?

Leonard J. Kerpelman:

Yes, Your Honor.

They’d have a suburb —

John M. Harlan II:

How did you accept the local option argument?

Leonard J. Kerpelman:

No, I do not accept it.

I’d say it would be unconstitutional and if one nonbeliever came into the county and started a case, I think he’d have a constitutional right to have the ceremonies halted.

Arthur J. Goldberg:

The Constitution establishes the definition.

Leonard J. Kerpelman:

The Constitution established that.

Potter Stewart:

Well, now, what was — wouldn’t he have to sue as a taxpayer or —

Leonard J. Kerpelman:

I don’t feel —

Potter Stewart:

What would be his detriment if he came to that (Voice Overlap) —

Leonard J. Kerpelman:

Well, there’s been that language in the cases, Your Honor.

It — and it grates on me every time I read them, but it’s probably the law.

I don’t think that the increment in taxes.

It’s like the Farthingworth versus Mellon that — was that the case decided that there was such an insubstantial increase in federal income tax the taxpayer couldn’t object to grant an aid to a state.

I feel that our constitutional rights are worth a little bit more than a six cents increase.

Potter Stewart:

What right would he be asserting?

Now, let’s assume my imaginary case of a —

Leonard J. Kerpelman:

Yes.

Potter Stewart:

— 100% Methodist and they set up an official Methodist church.

Leonard J. Kerpelman:

Yes, sir.

Potter Stewart:

In this county, this imaginary county in an imaginary state.

Leonard J. Kerpelman:

Yes, Your Honor.

Potter Stewart:

In this nation.

And then, an Atheist moves into the county and he continues his beliefs.

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

del

Potter Stewart:

He doesn’t go to church.

He doesn’t go near it.

What is his standing to object to that

Leonard J. Kerpelman:

I think it would depend on the temper of the county.

Now, if he went to school and this was a perfectly ethical county and no one sneered at him and no one rebuked him and no one cast aspersions on his lack of belief, he would not be able to come into Court.

He could show no detriment.

But if it were otherwise, then I think that he could require that the Constitution be brought to his aid, one person in a county.

Potter Stewart:

Well, because his freedom was being ex — interfered with, but until or unless that happens, he has no standing except perhaps as the taxpayer, does he?

John M. Harlan II:

But your (Voice Overlap) —

Leonard J. Kerpelman:

I would — yes, I think the language in McGowan went that way, Your Honor; that economic detriment in that case was — of course that was an economic situation where people were contending that because they had to close on Sunday they couldn’t make money on Saturday or vice versa, I forget.

But, the Court did speak in that case in terms of economic detriment as to the Establishment Clause.

Hugo L. Black:

I don’t see that we have much personal standing here but I do not quite know with you when you say the man has to be a nonbeliever in order to have standing.

Leonard J. Kerpelman:

Oh, I absolutely did not intend to say that, Your Honor.

I —

Hugo L. Black:

The Lord’s Prayer comes from the sixth chapter of Matthew.

Leonard J. Kerpelman:

Yes.

Hugo L. Black:

There are many people who devoutly believe admonition in that chapter that they should not pray in public.

Leonard J. Kerpelman:

Yes, sir.

Hugo L. Black:

Even though they are earnest, devout, God-fearing Christians.

Leonard J. Kerpelman:

Yes, sir.

Hugo L. Black:

Because that chapter, three verses before the Lord’s Prayer begins, advises not to pray as the hypocrites do in public.

Go into your closet.

There, pray.

May God — if God hears you in secret, will answer you in secret.

Why would not a man have a right?

I found that this is a very strong belief throughout the country in the last year that these people should not be made to pray in public even some of the most earnest Christians.

Why should they not have a right to challenge it?

Leonard J. Kerpelman:

Thank you Your Honor.