School District of Abington Township, Pennsylvania v. Schempp – Oral Argument, Part 2: School District of Abington Township, PA v. Schempp – February 28, 1963 (142)

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

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

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Earl Warren:

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

Mr. Ward, you may continue your argument.

Phillip H. Ward:

May it please the Court.

At the close yesterday, I was dealing with the problem what are the Schempp’s complaining about?

First, they’re not complaining that we’re using the Bible in the school.

They have said in their brief that they’re not complaining that the fact that the Bible is being used, they say what they complain about is the way it’s being used.

This is consistent with the two decrees of the Court, never has the Court said that we cannot use the Bible in the school.

Consequently, the problem here is how do we use the Bible in the school?

We say and the statute says to bring lessons of morality to the children.

The Schempps say, “No, you can’t be doing this.

How can you teach anything?

How can you bring lessons of morality to the children?

How is it a proper way to teach if you only use one source,” we only use one book, “if you don’t allow any comment to be made on what, what is being read?

If you don’t select particular passages that are unusually good,” they say, “this can’t be teaching morality.”

They say, “You’re not teaching morality.

What in fact you’re doing,” they say, “is you are teaching some kind of a public school creed, it doesn’t have religion that’s cut adrift from theology.”

On page 29 of their brief, in the second paragraph they say, and they’re talking about the Bible reading practice, they say, “The result is to foster a kind of colorless national or public school creed, a religiosity without religion, a sanctimonious eclecticism cut adrift from theology.”

And gentlemen, that is precisely what we’re doing.

We are teaching morality without religion cut adrift from theology, and that is proper for the people of Pennsylvania.

We can bring to our children the lessons of morality in their school days as long as we’re not bringing religion, not bringing theology.

The people of Pennsylvania have wanted to do this.

They have — since the beginning, wanted to bring these lessons of morality to the children.

So what did they do?

They picked a common source of morality, the Bible.

They could have picked two sources, ten sources, a hundred sources, but they didn’t.

In their wisdom, they picked the Bible.

In order that only the morals would be taught.

In order to keep out any possibility of theology, of doctrines sneaking in, they say it shall be read without comment.

They say we shall not pick certain particular passages.

They didn’t want any possibility of any sectarian or religious instruction.

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

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Phillip H. Ward:

Now, perhaps the result is as the Schempp say, it’s colorless.

I don’t know what a colorless creed is or what a colorful creed is.

William J. Brennan, Jr.:

But Mr. Ward —

Phillip H. Ward:

But in any event —

William J. Brennan, Jr.:

Mr. Ward, may I ask, but this is teaching from which students may excuse themselves, I gather, under the Amendment.

Phillip H. Ward:

That’s quite correct, sir.

William J. Brennan, Jr.:

You don’t excuse them for (Inaudible)?

Phillip H. Ward:

No, we excuse them from the flag salute, sir —

William J. Brennan, Jr.:

But why —

Phillip H. Ward:

— and that is teaching patriotism.

William J. Brennan, Jr.:

Why?

If that’s all you’re doing, is teaching morality or face the flag and salute for patriotism, why do you treat the subjects differently when you do arithmetic, geography, or anything?

Phillip H. Ward:

Why?

I don’t know how is the best way to teach morality, sir.

Perhaps you teach morality in a different way than you teach history, but I think —

William J. Brennan, Jr.:

But what I’m getting to is, is it consistent with your insistence that all you’re doing is teaching morality that you’ll excuse them from (Voice Overlap) —

Phillip H. Ward:

I — I think it is consistent in this respect, sir.

The provision for teaching morality, I believe the requirement for the excuse is not absolutely necessary to the constitutionality of this — this particular practice.

I think the fact that we teach it in this way, maybe it’s not the best way, maybe we shouldn’t excuse the children, but it’s the way that people of Pennsylvania picked out and as long —

William J. Brennan, Jr.:

Well, the fact that you do excuse them, it does throw impression, doesn’t it, whether in fact all you’re doing is teaching morality?

Phillip H. Ward:

Well, no.

In Pennsylvania, we also excuse children if they want to be from a physical and dental examination if they have any religious compunction about taking that.

I think, here is a situation we want to teach morality.

We think it’s a good thing.

We do it in a different way than we teach other subjects perhaps —

William J. Brennan, Jr.:

Well, I would say, I would suppose it was a — so — it’s a very good thing, perhaps.

Phillip H. Ward:

Certainly.

William J. Brennan, Jr.:

Perhaps even in some respects of rather more important than teaching requisites.

Phillip H. Ward:

I think it might well be.

William J. Brennan, Jr.:

And yet — in fact all you’re doing, it’s hard for me to understand why — why as I gather under your statute is the case the whole the class can excuse itself.

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

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William J. Brennan, Jr.:

The whole school can excuse itself.

Phillip H. Ward:

It could.

Byron R. White:

Well, don’t you have other electives?

Phillip H. Ward:

We have other electives.

It’s not in the record but like the children who take the television and radio workshop that are the ones that read this, I know can take it or cannot.

But my point is this, Pennsylvania has decided this is the way it wants to teach morality.

I agree with the Schempps that it is without religion, it has cut adrift from theology.

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

No, sir.

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

No, the Bible as we all agree is a monumental doctrine.

It has religious values, moral values, historical values, literally right.

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

I am taking the position —

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

The Pennsylvania — that’s exactly what I say, sir.

We are teaching the morality in the Bible.

We might have used the Qur’an if we thought that was the proper source of morality.

Arthur J. Goldberg:

That’s a very careful argument, I understand it.

The Bible (Inaudible)

Phillip H. Ward:

It is a great religious document and it has other values.

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

I don’t — sir, when I read the Bible, I may get one feeling when you read it another, or the third person.

What I say is the Bible is of value to the atheist who doesn’t believe, or to the agnostic.

The morality, the lessons, the history, the beauty of the Bible can mean something wholly apart from religion.

That’s — that is why the Bible is such a monumental work that it has this ability and that is what we’re using.

And again, the Schempps say that this case, the establishment of religion is exactly the same as we find in Engle and Vitale.

They say that this case is like Engle and Vitale, but the difference between a suggestion of the State, the children say a prayer, a solemn of avowal of faith, and the suggestion that children listen to ten verses of the Bible is a complete difference in kind.

Suggesting that the children say a prayer is suggesting they engage in a purely religious act.

A prayer has no secular value.

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

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Phillip H. Ward:

The prayer assumes that the child believes in an almighty, that the almighty can hear him and may help him.

That is when you suggest to a child to say a prayer.

What are we suggesting?

We are suggesting that children listen to ten verses of a monumental work which as Mr. Justice Goldberg says is a great religious work, but in addition, it is a source of moral values.

Earl Warren:

And are you saying — are you saying, Mr. Ward, that the State of Pennsylvania contends that all of those children whose parents are amoral and who don’t want their children to be product in moral teaching have the right to be excused —

Phillip H. Ward:

No, I’m not —

Earl Warren:

From — from — from that training which you were giving them.

Phillip H. Ward:

No, I’m saying that —

Earl Warren:

Then what — isn’t that the effect of it?

Phillip H. Ward:

No, sir.

I respectfully suggest it’s not.

A person could be excused from listening to the Bible.

Maybe that person believes so profoundly in the Bible that they only want their children to hear it read liturgically, that person might want the child excused.

The second person might be an atheist who thinks it’s all a bunch of myths and doesn’t want their child confused.

That person might want their child excused.

A third person might be neutral about religion but might say, “I don’t want my child to hear certain of the gory passages in the Bible.”

That child might be excused.

Consequently —

Earl Warren:

The fourth — the fourth category of course would be parents who are amoral.

Phillip H. Ward:

Certainly.

Earl Warren:

That they don’t want their children raised in that kind of an atmosphere.

And you say as to those, it is important as the State of Pennsylvania thinks this moral training is, those children may be excused.

Phillip H. Ward:

They may be excused just like Pennsylvania believes it’s proper to salute the flag but those who don’t want to, don’t have to.

Now, maybe the family doesn’t want their child to be patriotic, they have the right.

But what I am saying is the act of the excuse, the act of the excuse signifies nothing.

It doesn’t signify whether you’re a religious person, a nonreligious person, it doesn’t signify any belief.

That is what the Schempps argue that the provision for excuse in fact makes them make a public profession of belief.

It says, this is telling all the world, this is a public profession of belief.

That isn’t in this case, all the parent has to do is say, “I don’t want my child to be present when the Bible is being read.”

For the reasons, I’ve just given the Chief Justice their many reasons why the child should not or may be excused.

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

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Phillip H. Ward:

I think what the Schempps are objecting to is they have to do something.

I think they’re saying, “Why should I have to do something to get my child out of it?”

Well gentlemen, the Jehovah’s Witness parent has to do something to have their child excused from the flag salute.

The Catholic parent has to do something to send their children to parochial schools.

The man who takes the Fifth Amendment has to do something.

I don’t think it’s unconstitutional to require them to do something.

Then again, the Schempps say, “What this does is this separates the children.

It’s divisive.

It separates our children from the others.

They will be unbold.”

They will be different.

They will be different because this separates the children from those who want to be present when the Bible is being read from those who don’t want to be present.

It doesn’t separate them as Catholic and Protestant or Jew and atheist.

An atheist may well want to hear the Bible.

They may well get moral lessons out of the Bible.

A developed Christian may well not want to hear the Bible.

It separates them and they are different, but not different according to their religion.

Earl Warren:

You mean they’re separate, but equal?

Phillip H. Ward:

No, I don’t mean that sir.

I don’t mean that.

I mean, they’re separate in this way.

They’re separate as the child that’s been excused from the flag salute is separate.

They’re separate as the conscientious objectors separate from those who serve.

They are separate as the child who goes to parochial school is separate from the child who doesn’t.

That’s the glory of the country they can be separated.

They have the right to be separate.

There are only two places where they would all be the same.

One of course would be a totalitarian state where we couldn’t be different; and two would be some sort of big togetherness state where we never did anything unless everybody wanted to do that very same thing.

And of course, they’re not many things that everybody wants to do.

Then the Schempp’s say —

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

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Earl Warren:

Mr. Ward, are you asking us to overrule Vitale?

Phillip H. Ward:

No, sir.

This is not the Vitale.

Earl Warren:

Why isn’t it Vitale?

Phillip H. Ward:

Vitale was suggesting that the children do a purely religious act.

Vitale was suggesting that the children each morning say in fact, “I believe in God.

I want him to bless my teachers and the school.”

There’s no meaning to a prayer unless there is a reli — it’s a purely religious doctrine, a purely religious act.

Earl Warren:

Do you mean there is no religious meaning to the Lord’s Prayer?

Phillip H. Ward:

Sir, we are not, in this case, I am arguing for the Bible reading statute.

The Lord’s Prayer is a custom at Abington but it’s not a subject —

Earl Warren:

It’s permitted under the same — permitted under the same law?

Phillip H. Ward:

No, sir.

Earl Warren:

And it’s done, isn’t it?

Phillip H. Ward:

It is done but it is not part of the statute of Pennsylvania.

In other words, the statute of Pennsylvania requires only the ten verses of the Bible be read every morning.

It is a custom at Abington to follow that by a recitation of the Lord’s Prayer.

The injunction against us says that if we just do the statutory method, just the Bible, we are unconstitutional.

If we do it, the Bible and the prayer were unconstitutional.

Consequently, this Court must concern itself with the Bible because if that is unconstitutional, you don’t have to bother with Lord’s Prayer.

Earl Warren:

Suppose they read them, that part of the Bible, it is the Lord’s Prayer.

Phillip H. Ward:

There’s a distinct difference, sir, I suggest.

In other words, the Lord’s Prayer appears in Luke and in Matthew.

When it’s read to them from the Bible, it is an explanation and historical account of how Jesus taught us to pray.

I think that is different than suggesting to the children say this prayer, and as an analogy to point out the difference, suppose I lived in Baghdad and my son Phil went to a school there, some Muhammad nation.

And he gets to school every morning, they read ten verses from the Qur’an.

And one morning, he gets there and they read, and then Muhammad gathered his tribes and warriors around him and said, “This is the way you shall pray.

There is no God, but God and Allah is his prophet.”

William J. Brennan, Jr.:

I know but there’s no First Amendment in the Constitution of Iraq.

Phillip H. Ward:

And sir, I’m trying to explain the difference between reading a prayer as part of the text in the Bible, and suggesting to the children that they say the prayer.

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

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Phillip H. Ward:

I would think it would be entirely different if — as I am describing the Qur’an says, this is how Muhammad said to pray, “Then if every morning that my son goes there and they start by saying, “There is no god but God, and Allah is his prophet.”

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

Sir, that’s the name of the Bible.

The Douay Version is the Holy Bible or the Revised Standard Version is called the Holy Bible.

The King James Versions is called the Holy Bible.

Arthur J. Goldberg:

(Inaudible) that there are some other versions of the Bible, do they call it the Holy Bible?

Phillip H. Ward:

Sir, the — all the Bibles I have seen are called the Holy Bible, the Jewish Holy Scriptures —

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

But the Holy Bible is the — the generic for this particular book.

Byron R. White:

Well, Mr. Ward, I take it then you do say that — that one of the differences between Vitale and the fact the students here do not in this case, other than (Inaudible)

Phillip H. Ward:

It’s not so much whether they speak or whether they don’t speak.

Byron R. White:

But — do you think you would make the same argument as the — that the school required into — to teach what was that doing in that unit?

Phillip H. Ward:

I don’t think that is, that maybe bad on —

Byron R. White:

Would you make the same argument or not?

Phillip H. Ward:

Mr. Justice White, I didn’t quite understand if instead of reading the Bible all the children have —

Byron R. White:

They ask you, do these students repeat after the reader what the reader read?

Phillip H. Ward:

I think if they required, that’d be bad under the Barnette case.

I don’t think we can require people to say anything.

Byron R. White:

Whether it’s religious or not?

Phillip H. Ward:

Yes.

I mean, I don’t think he can require, I think that was defining the Barnette case.

It wasn’t so much, it was a religious act.

It was — there’s the First Amendment prevents —

Byron R. White:

You make them a vow or belief?

Phillip H. Ward:

Yes.

Now, in addition, the Schempps say in this case and as did the court below fall squarely within McCollum.

Here again, you have an entirely different situation because in McCollum, you were dealing with the purely religious act, pure sectarian instruction, there’s no doubt about that.

The school is making possible and in the sense suggesting to the children that they either go to one of the three religious teaching classes, that’s not here.

McCollum, Zorach, all of these cases deal with a purely religious act.

Here, comparing one child reading over the public address system of the other children, ten verses of the Bible cannot compare with the admitted religious instruction in McCollum.

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

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Phillip H. Ward:

Again in Tudor, the Schempps mentioned the Tudor case might have an effect.

In Tudor, we were dealing with the Gideon Bible.

The Gideon Bible is the New Testament, the Psalms and the Proverbs from the Old Testament.

The Gideon Bible is a distributed by the Gideon Society which is an admitted Christian evangelical organization.They are trying to bring men to Christ.

This would be helping a religious group to distribute their pamphlets.

Earl Warren:

Mr. Ward, would you say that if the statute did require the children to repeat the Lord’s Prayer that it would be unconstitutional?

Phillip H. Ward:

I think it would, sir.

Earl Warren:

You think it would?

It will fall — fall exactly the same category as Vitale?

Phillip H. Ward:

I would think it would, sir.

Potter Stewart:

Well, would you say so if there were statutory provision to excuse any of those who did not want to do it?

Phillip H. Ward:

I think there you were suggesting that a child make a purely religious act.

You’re suggesting that he repeat — I think it’s like Engle and Vitale.

Potter Stewart:

Well, how about Barnette, the Barnette case?

Phillip H. Ward:

No, but Barnette case — I don’t think went on the religious part.

Potter Stewart:

Oh, it didn’t but if they, what it did say was that the Minersville School District could not require a child to profess a certain belief or either pledge of allegiance to the flag.

But as I understand that case, as I remember it, they said that if there were provision to excuse any child, they didn’t want to do so then you have a different constitutional question.

Phillip H. Ward:

Well, I think because of the nature of a prayer, I think the prayer in Engle and Vitale, and any prayer, to me, has no secular meaning.

It’s a purely religious act and I think it’s certainly can’t be required.

And I think even suggesting that children do it, there may be a compulsion on the child, he may feel he should do it and I don’t think the Constitution —

Potter Stewart:

Well, if there were evidence to that then there wouldn’t be an effect to this excusable provision.

Phillip H. Ward:

Well, this is a hypothetical —

Potter Stewart:

Yes.

But assume — assume there were excu — a provision by which a child could be excused and the evidence showed beyond doubt that there was absolutely no pressure on him of any kind psychological, social or otherwise, or any separation or stigma of any kind under the Barnette case don’t you think that the —

Phillip H. Ward:

May well be constitutional?

Potter Stewart:

That it might well be constitutional?

Phillip H. Ward:

And I get —

Hugo L. Black:

Would you agree that with Abington that there is no one impression on a little child.

Then I got to do that with all the others to do it at which if he doesn’t do, you have to step aside.

Phillip H. Ward:

Oh no.

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

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Phillip H. Ward:

I think as I understand your question, Mr. Justice Black, if — do I think that no child is sort of compelled by the fact that all the rest do something?

Hugo L. Black:

That’s right.

Phillip H. Ward:

Oh no.

I certainly think children —

Hugo L. Black:

You cannot — can you assume that children are of that way?

Can you assume that there are certain differences?

Phillip H. Ward:

Oh certainly.

Hugo L. Black:

Under which children in school will have the majority and overwhelming majority belong to one group.

They’ve got to step aside each time they say something.

Can you assume that there’d be no pressure on them to step aside?

Phillip H. Ward:

No, I think there, there may well be.

I think there’s pressure on the child that’s excused from the flag salute.

I think maybe his little friend say, “Why don’t you salute the flag?”

I think the child that doesn’t go to the school dance they might say, “Why do you do this?”

I think undoubtedly there is this difference.

I think there’s nothing we could do about a difference.

And I think there is a general pattern of conformity but in our case, there is no conform — no pattern to make the child do a religious act.

Hugo L. Black:

Let’s assume that we can distinguish that that confers a little different than your idea of the Bible.

We can assume the Bible whenever it’s read, it’s not read to call its religious connotation?

Phillip H. Ward:

I think that’s a fair statement sir that we say, our statute says, our — the testimony of our witnesses in the school say that we are using the Bible to bring lessons in morality to the children.

We admit the Bible has a great religious value.

It has a great religious history.

It’s obviously an original, a religious document but we say in addition to that it is a source of morality for western civilization that we have adopted; that the morals in it are what we want actually to find and we think by —

Hugo L. Black:

Do you think we adopted — do you think we adopted it because of its morality or because of our religious faith?

Phillip H. Ward:

I think we adopted it.

I think the morality — it’s a morality we understand suppose, would we adopt the Qur’an?

May I speak to that for a moment?

I think Pennsy —

Hugo L. Black:

Well, I don’t think we’ve had to do that if we had that kind of sentence because as I recall it, the Government had a great deal to do it by force in compelling people to belong to that religion, isn’t it?

Phillip H. Ward:

Well sir, I didn’t mean if we were Mohammedans.

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

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Phillip H. Ward:

I meant would Pennsylvania, is it likely they might have adopted as they source of morality, the Qur’an.

And I think wholly apart I don’t think it’s the religious reason.

I think it’s weird, nobody at least in Pennsylvania were not too familiar with the Qur’an.

What are the moral — is it a source of morality?

The one thing I know about the Qur’an is it says that you should have no more than four wives.

That would be a doubtless —

Hugo L. Black:

You know whether anyone has ever suggested that they have to pass a law to read the Qur’an in school?

Phillip H. Ward:

I know.

I’ve never heard of it and I don’t think it ever would happen because we don’t consider the Qur’an the supreme source of morality that we consider the Bible.

Hugo L. Black:

Why?

Phillip H. Ward:

We don’t know anything about it.

Hugo L. Black:

Is that the reason?

Phillip H. Ward:

Well, I mean I’ve been exposed to a little education.

I don’t know too much.

As I said the one —

Hugo L. Black:

Isn’t that the reason — isn’t it the reason that the Bible is a religious book.

The prayers are all religious prayers.

Its writings have been accepted through the centuries as the great fruits of religion.

Isn’t that here?

How can we escape that?

Phillip H. Ward:

Mr. Justice Black, it is that and so much more.

It’s so much a part of the tradition of this country and the morality of the country.

It’s our sort.

I mean, you can’t say that morals only spring from religion.

The atheist can be a moral man.

The agnostic is a moral man.

Morals are so — the morals in the Bible are not so deeply based on the Christian-Judaic concept that they can’t be separated.

Certainly we can’t claim — the Christians and the Jews can’t claim that the morals that are in the Bible as our own particular document that they’re only ours.

We can teach morality and we think that the best place to get morality for our system in Pennsylvania is to use a book that we — everyone’s familiar with.

Everybody approves those moral.

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

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Phillip H. Ward:

When I —

Hugo L. Black:

Everybody?

Phillip H. Ward:

The vast majority.

If — if were everybody saying, “We want to pick this as our religious book”, that would be bad.

We can’t pick a religious book.

Hugo L. Black:

We have to assume that Pennsylvania has done this not to advance religion at all, not because the people have their belief in the Bible, not because they believe in the religion that keeps it, but wholly aside from that.

Phillip H. Ward:

The Pennsyl —

Hugo L. Black:

— or it has the moral precepts which it does.

Phillip H. Ward:

That is exactly it, sir.

Hugo L. Black:

That’s the assumption we have to make.

Phillip H. Ward:

The assumption is — that is what we’re doing.

The people of Pennsylvania believed that the religion that must be got at the home and schools, at the Sunday school.

Hugo L. Black:

Suppose the — suppose the statute says that they get it from this, suppose the statute says, “We want this Bible reading and through every morning because we are religious people.

We believed in the particular religion of the Bible and we want it read.”

So that it will keep the children of all the school children in Pennsylvania can hear it.

Although we will excuse those who do not want to but we do it because it’s a religious book, what would you say then?

Phillip H. Ward:

That would be unconstitutional.

Hugo L. Black:

So it gets down to a question of whether we can say that it is being used as a religious book and that we could say because it is a religious book and if we say that, would we hold a Constitution?

Phillip H. Ward:

I think that is why I said when I opened this case that the — it’s a noble question.

The Bible has religious values.

We all admit that.

We all know that.

The question is, can the people of Pennsylvania use this source of morality to bring lessons of morality to their —

Hugo L. Black:

That is it when they gathered when I was asking you, whether the people of Pennsylvania have then, whether they have access and done it because as I would assume about your argument, that people then believe in that religion.

They like the Bible.

They’ve heard it from the inferences.

They loved it.

They loved its principles and they want to have it taught in their schools, because it’s a religious book.

Well, that’s your argument.

I would not have thought that was questioned.

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Phillip H. Ward:

Well, are you — Mr. Justice Black, are you asking me do the people of Pennsylvania do it because it is a religious doctrine?

Hugo L. Black:

Yes.

Phillip H. Ward:

No, sir.

Our position is they don’t.

Our position is that they, of course, appreciate the Bible but in their schools, they are bringing lessons of morality if they wanted to bring the religious part.

We would have comment.

We have picked the particular passages.

We would have — I mean if we’re going to teach religion, we could do it in a different way.

Our ques — our argument here is here is a traditional practice that in the absence of the fact of the Bible has religious connotations, we wouldn’t be here today.

What we are arguing is —

Hugo L. Black:

I suppose you would agree, wouldn’t you, that during its 2000 years of history, the greatest year, the most voted year and the most productive year of the Christian religion have been those years when Government didn’t enforce it, would you agree to that?

Phillip H. Ward:

I certainly would, sir.

Hugo L. Black:

And then its worst years have been the years when in some way public officials that hold up and corrupted, you would agree with that?

Phillip H. Ward:

I would agree with that completely.

And I also state that here, the State is not forcing religion.

Earl Warren:

Mr. Ward, may I ask you this please.

Suppose we accept your argument that this ceremony is moral instruction and is not in any sense religious.

And supposed the State next says following the ceremonies each morning there shall be one hour of instruction in morals.

And during that hour of instruction, nothing shall be done except to read the Bible to the students and all must attend except those whose parents object to it.

Do you think that would be acceptable also?

Phillip H. Ward:

I think as the case before us now ten verses is acceptable.

I think, I agree with you, Chief Justice, it could become so bad that you couldn’t — reasonable men couldn’t say they are teaching morality.

They would have to say, they are doing nothing but using the Bible to indoctrinate those children with religion.

Earl Warren:

Well, would an hour of instruction in morals beyond constitutional with a few moments of instruction would not be?

Phillip H. Ward:

I think that would be a question of fact.

I would think an hour taken out of the school day for morality as Mr. Justice Brennan said, “Morality is a very important thing to teach.”

I don’t know.

Earl Warren:

Yes, it is very important.

Phillip H. Ward:

I don’t know.

I know if the people of Pennsylvania think that’s a good way to teach morality, I think the problem would be for the Court to determine.

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Phillip H. Ward:

In fact, could we as reasonable men believe that Pennsylvania is really trying to teach morality or by this tremendous emphasis on the Bible, they are in fact trying to teach religion?

I think that the question that —

Earl Warren:

Isn’t that our problem today?

Phillip H. Ward:

It’s exactly our problem today, sir.

And I — and I are obviously —

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

I think you can sum up our particular problem as this.

Can you use — can you keep a tradition which has secular values?

It does teach morality.

It is non-compulsory.

The child doesn’t have to be there.

But the only problem is that it is — it involves part of the religious tradition of this country.

It deals with the document that is of obvious religious origin and to many people an obviously religious book.

Can you use the great values that are in the Bible or is — does the Constitution mean, which I respectfully say, it does not mean that despite the fact that nobody is forced to believe or disbelieve anything.

Nobody is forced to contribute to support.Nobody is indoctrinated despite the fact that this custom doesn’t do any of those things must the Government ripped out that doctrine, that tradition, simply because it involves a religious book.

Must the Government any time, any tradition in any way, reflects the fact that we are a religious people?

Must say rip out any tradition even, even if that tradition nobody has to abide by?

The tradition isn’t trying to teach anybody anything.

The tradition isn’t requiring a person to believe or disbelieve.

The tradition has secular value.

It has a purpose like Sunday closing.

It has a purpose to teach morality to the children.

Arthur J. Goldberg:

(Inaudible)

Phillip H. Ward:

I think had Pennsylvania decided that was a good way to teach morality, it would be constitutional but this is what I think.

I think it is — Pennsylvania would have — the people of Pennsylvania may have decided by selecting certain particular sermons, certain particular tracks.Sectarianism could creep in.

In other words, how do you really find any volume and monumental work for a source of morality such as the Bible, and that’s why the Bible is used.

That’s — it’s here for us to use.

Taking the sermons, I think if Pennsylvania decided that was the way to do it, I don’t think it would be unconstitutional.

Potter Stewart:

Mr. Ward, that is — as I gather or do I correctly gather that your argument contain of very narrow complex.

And that is that this is not — the statute does not require a religious act.

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

That if we’re not persuaded by your argument that it does not require religious act, then I gather you concede that this religious act notwithstanding the provision for excusable to the children is unconstitutional.

Phillip H. Ward:

You correctly stated the first part of our argument that we say this is not a religious act, therefore, it’s constitutional.

If you hold that it is a religious act, I think it falls within that body of tradition that we have that is like “In God we trust” in the coins, like starting this Court with “God save this Honorable Court”, I don’t think it is — it rises to that dignity, that type of religious act.

I think the religious act in Engle where it was actually a prayer, where the children were required to make an avowal of faith.

That is, I distinguish in this case I distinguish the kind of religious act that was suggested in McCollum because that was pure religious indoctrination.

Potter Stewart:

Well, then I should add then, it’s only if we were able to conclude that the statute requires in a religious act no different from the religious act required in Engle that you concede its unconstitutionality —

Phillip H. Ward:

I can see —

Potter Stewart:

— notwithstanding the provision for excuses.

Phillip H. Ward:

Yes.

I can see if this Court determines that our ten verses of the Bible is the same nature as in Engle and Vitale requiring the children to say they believe in God.

Yes, I think under Engle and Vitale, you have to clarify.

Byron R. White:

Well that is — assuming that Engle and Vitale were governed to take —

Phillip H. Ward:

Yes.

Yes, and I — I respectfully submit it —

Byron R. White:

— going on as —

Phillip H. Ward:

It does not.

Byron R. White:

Are you going on with (Inaudible) to reexamine.

Phillip H. Ward:

No.

I think our case is —

Byron R. White:

Well, I know but assuming — assuming that the Court found it to be a levin in fact that the case of Vita — that is in Vitale, are you going on to say that we should reexamine Vitale?

Phillip H. Ward:

I would say you should if you find that this kind of an act that we are doing which is I say is sec — has secular values, is traditional but in some way reflects the religious tradition of this country.

If that is unconstitutional because of Vitale, then I — I suggest you have to reexamine Vitale.

I don’t think our case is anywhere near Vitale.

And I don’t think that’s what Vitale held.

In addition to the foregoing argument, we also would like to suggest that the plaintiffs in this case that don’t have standings to, we’ve even not — even concern ourselves with the constitutionality under the doctrine.

Mr. Justice —

Earl Warren:

If you have one final statement, you may make it if you do, Mr. Ward.

Phillip H. Ward:

May I allow the Attorney — Deputy Attorney General of Pennsylvania to make a final statement, sir.

Earl Warren:

Well, do you have used your hour up.

If it’s very brief, he may do it but you use your time.

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Phillip H. Ward:

Thank you.

John D. Killian, III:

Your Honor, may I make a short statement, about the —

Earl Warren:

You may make a short statement.

John D. Killian, III:

— at the end of the argument?

Earl Warren:

Yes.

I’ll give you five minutes.

John D. Killian, III:

Thank you, sir.

Earl Warren:

Mr. Sawyer.

Henry W. Sawyer, III:

Mr. Chief Justice, may it please the Court.

I believe that Mr. Ward has completely stated the procedural history of the case and I’ll not repeat that.

And for the most part, I believe it’s fairly and most fairly covered the facts of the case.

Well, I would like to comment in one or two particular along the evidence, and one or the two of the facts of the case which I think needs some comment.

First of all, I think it should be quite clearly understood that the particular practice described by one of the witnesses who are the school district who run the radio and the television workshop was characterized by the lower court as an exception.

And the record is quite clear that in the other schools of Abington Township where these children went, as a matter of fact, when the first trial was held, the practice is typical of the Commonwealth in general.

And if it makes any difference and that is that the teachers generally read the ten verses of — or in the alternative assign it to some child in rotation, you don’t have the public address system.

And in fact on cross examination, the teacher who described that practice conceded that it was only his own individual innovation which had prompted him to suggest that since the children might well read better from the radio techniques then point as he put it.

If they had a chance to practice, they might use at home their own Bibles and then come in and use them.

But it — if that makes any difference, I think the lower court was quite right in saying that that would only mean that you’d established a number of religions or religion generally.

And in fact, we never did find out from that witness what the Jewish children did about the Lord’s Prayer because they leave that too, you see over the PA system since the Lord’s Prayer isn’t in their Bible.

Now, the other point that I would make is this question of where does the Lord’s Prayer stand in this case?

It’s quite true it is not mandated by the statute.

However, the record shows on page 99, I refer to the testimony, although witness for the school district, and it was introduced into evidence by the school district, a book called ‘The Employees’ Handbook and Administrative Guide.

And the witnesses’ attention was direct to the portion which refers to “Teachers-Professional Obligations”.

And it states there that the first professional obligation is to comply with the state regulation in reading at least ten verses of scripture each morning without comment.

This is to be followed by the Lord’s Prayer.

Now, that is a part of the hearing which took place before the amendment of the statute.

But there is no evidence in the record that this regulation in any way has been changed.

And I don’t know why it would be changed, because the amendment of the statute didn’t affect this Lord’s Prayer practice.

John M. Harlan II:

What page is that?

Henry W. Sawyer, III:

That’s on page 99, Mr. Justice Harlan.

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Potter Stewart:

The statute doesn’t say anything about it?

Henry W. Sawyer, III:

No, it doesn’t.

Right.

We can contend, of course, that the injunction bars it now.

You can’t read the Lord’s Prayer because it’s a part of the — it’s a part of the — of the New Testament, part of the Bible.

But it is apparently according to this, this is a state wide publication, it’s mandated at least by that rule.

And I also call it that your attention to that passage in deciding whether this is compulsory now that the school district always calls this a voluntary Bible reading statute.

There’s nothing voluntary about the Bible reading.

The Bible reading is mandated by the legislature.

The language is it shall be read.

And as the lower court found in spite of the repealer of this specific provision in that statute saying a teacher would be dismissed if he declined or neglected.

This public school code takes care of that.

And as the lower court as Mr. — as Chief Justice Biggs found, Chief Judge Biggs in his opinion, he stated that under the public school code since there is a clause that says, “A willful violation of the school laws is punishable by dismissal,” it seemed at least quite clear to him and it would seem quite clear to me that a teacher could not refuse.

I don’t think that that — the case turns on whether the teacher could refuse.

This isn’t the teacher, but I — I wish to set the record state — straight in that respect.

Now, we — we claim that the practice is not voluntary in any sense which applies at least to the Establishment Clause.

It is compulsory.

It will come, if we may, in a minute, to that what happens and what the effect is of an excused provision.

Let me say to all that it’s also quite clear from the evidence that the Schempps do not take the position that was referred to hearing the brief.

I really think that the brief was quoted out of context.

The Schempps testified, children and father alike, of specific creedal, doctrinal religious beliefs of theirs as taught in their family and in their church that were opposed by, if you will, contrary to specific things that had been read from the King James version of the Bible.

Since they are Unitarians, the most obvious one is the concept of the trinity and the concept of unity.

This is — this is the — the most obvious, but there were others.

Mr. Schempp said that he didn’t wish his children to get the concept of — as he put it a God of vengeance.

The Old Testament God, the jealous God who demands blood sacrifices, and says, “If you don’t correct, do them properly.”

And this is Leviticus.

If you don’t do them properly, then the punishment comes upon you and your children.

And I question, we come to this question of the Bible’s morality.

Of course there are morality teachings in the Bible.

And of course those things which I frankly say, I think would offend present day morality.

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

I have no hesitations in saying that, because to an adult or with teaching, they can be explained as a great evolving concept to these people, first towards monotheism then to rid themselves of these practices left over from Pagan times.

And finally, it will evolve into a concept of God, certainly the God at the end even of the New Testament is not the God of the beginning of the New Testament, but the children can’t separate this.

I’m not sure it’s morality particularly to tell the children that I’m just — and I’m only picking things that were in this record.

I mean, you could go at random through the Bible, but Mr. Schempp says, “When the Bible says if it — animal dies within your gaze speed and not to those within your greats but to the strangers outside.

Now, this doesn’t seem like morality to me.

Now, this can be explained.It just so happened that that particular thing was cited and then Dr.Grayzel, a Jewish expert said, well this can be explained.

I won’t go to the explanation, but there is one.

Now, this is a different thing with the explanation, but the young children — one wonders whether this is necessarily –“

Byron R. White:

What do you mean?

Henry W. Sawyer, III:

— such morality without explanation as the reading of the Bible alone will ensure good morals.

Mr. Schempp pointed out the right in the Ten Commandments.

There’s a verse that says that if one of them or perhaps all of them is broken, then the sin be upon the children under the fourth generation.

That isn’t his morality.

And I’m sure that can be explained.

But it isn’t his morality.

And reading that without comment is not the kind of concept even moral.

And I really submit you cannot separate the two in this context.

You cannot separate the moral levin from the religious levin in the Bible.

I think the two go absolutely together.

And it teaches — they say it doesn’t cross through the type.

It teaches — the book teaches from the opening chapter of Genesis to the last chapter of Revelations.

It teaches — it teaches the way the world was created.

And I think it teaches in the sectarian sense from the opening.

From the very open, it says “And lo the Spirit was upon the orders”.

And in the King James version and I’m sure the Douay Version, that word is capitalized.

It means the Holy Ghost.

This is the beginning of a teaching of a concept of Trinity.

It teaches — the New Testament is a teaching message.

When Jesus said, “Others have said unto you, an eye for an eye and a tooth for a tooth.

But I say unto you thou shall resist not evil.

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Henry W. Sawyer, III:

If one smites thee upon one cheek”, and so on, this is teaching.

And it was a highly controversial teaching.

Then and I submit to Your Honors, it’s highly controversial teaching.

Now, men do not agree about these things.

And what I said in my brief was that to dismiss these differences as mere quibbles to say, “Well, it doesn’t make any difference.”

It’s really as the Attorney General of Maryland said a question of theism or nontheism is to find a face of hundreds of years of history in bloodshed, I submit, for the religious history.

And I said there that that is — to do that is to deny the validity to many and the value of specific creedal, religious belief.

Not religion in general.

Not a kind of generalized theism which is suitable to some, but not to others.

And I said that to do that is to lead to a foster of kind of colorless national public school creed.

But, I don’t say that’s what they’re doing.

It’s those who make the argument, there’s no one here but us theist.

We’re just reading some lessons of morality, I submit to tend to do that.

And I submit that it isn’t the function of Government, school districts.

It isn’t the function of — even forces in society to ensure that these religious differences of America shall somehow be sort of blurred and sickle over.

And we’ll come out with this kind of morality.

I don’t think that’s the business of the public schools particularly, but it’s a tenancy behind this kind of practice when it’s justified in this way.

And of course, it must be because to say otherwise is to admit it for what it is and for what the legislation so clearly intended.

They didn’t single out another single work in the range of the world’s literature.

And there are other sources of morality.

Not one other book in all the range of the world’s religious and secular of the literature is singled out by the legislature of Pennsylvania to be read.

How many?

Ten verses.

It shall be read, how?

Without comment.

This — this is — this is unique to start with.

Now to be sure, the legislature said, “Well we do this for secular purpose.”

And I think that all establishments are nominally done for a secular purpose.

At least since the middle ages, I suggest there’s never been an establishment.

And I mean real complete establishment such as you have in England, you have in Scandinavian countries where their churches such as you have in, shall we say, Italy or Spain.

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Henry W. Sawyer, III:

There has never been an establishment in modern times which purported to be an establishment in order to convert men to the doctrine, but rather to improve their ways, because isn’t it true that the majority, and they’re the ones who are in the position to have an establishment always say, and they must assume, well it’s not only our religion that is so effective, but you know, our particular religion just has a way of making men better than other religions.

And therefore, it’s to the good of the State to have it established.

Then I suggest, in answer to Your Honor, Justice Stewart’s question, that leads me very close.

I’d like to try to answer them.

You haven’t put it to me, but you put it to one counsel yesterday.

And you said these are not inherited in this situation, a conflict between a Free Exercise Clause and the Establishment Clause.

And I think not for this reason.

I do not think that the Free Exercise Clause — well, first of all let me say, of course, it can not prevent people from praying.

I mean people could pray and they pray and nobody stops them from praying as such.

The question is, is it a constitutional right under the Free Exercise Clause to have the State conduct the prayer or to pray in other words under the ejus of the State?

And I think clearly not, even if the overwhelming majority has so feel, I think it probably had nothing to do with the question of majority.

Potter Stewart:

Well, let’s assume — let’s assume there was no statute here.

But that the — they had a student government in this Abington Township High School which is fairly typical with many public high schools.

And — and the students voted overwhelmingly that they wanted to begin their day by having one of their number perhaps on rotating basis, read ten verses from the Bible which every Bible, the particular student reader shows that morning and to begin the school day.

And that they — and then there was — this was attack of the Constitution and there was evidence from all of these people who voted that our religious beliefs tell us we want to do this in the free exercise of our religion.What kind of case would you have then?

Henry W. Sawyer, III:

May I ask?

Potter Stewart:

I asked the question just from the facts.

Henry W. Sawyer, III:

Is this a case where —

Potter Stewart:

I may get the facts as I go along.

Henry W. Sawyer, III:

Well, of course, yes sir.

But — do they — does the school — do the school authority said — say, “Well then, certainly you can use the PA system and we’ll get the children together.”

William J. Brennan, Jr.:

Well, yes these children are together.

They are together.

Henry W. Sawyer, III:

What were they doing otherwise?

I mean, — I’ll answer it this way.

If and pursuant to that, the school authority say,” Yes, you may use the PA system.

We’ll have the children doing not something else at the time in the classrooms.”

Now, I say that it’s an establishment nonetheless, not so crucial one, but an establishment not the — but if they say during recess, all children who would like to come and listen to ten verses being read in an empty classroom or somewhere around the school grounds, instead of going in the recess, we’re going to read it everyday, fine.

The difference is the imprimatur and the — and the ejus of the State.

And I’m not sure that the origin makes that much difference.

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Henry W. Sawyer, III:

Of course, it’s grosser if the legislature does it.

William J. Brennan, Jr.:

But isn’t that a gross — isn’t that a gross interference with the free exercise of the religion of those, in my imaginary case, those 98% of the student body who say, “Our religious beliefs tell us that this is what we want to do.”

Henry W. Sawyer, III:

Well, they have a right to do it, Your Honor, but they haven’t got a right to get the State to help them.

It’s the same — I think it comes back to the — to the same question as — as confronted Madison and Jefferson in Virginia, the overwhelming majority of Virginians at the time of the Assessment Bill were Christians.

And they — they wanted the State to help them establish teachers, but equally — absolutely equally.

And they had an excused provision because as the Assessment Bill was finally — in its final form in the Virginia legislature provided that it didn’t want to give to any religious group, if it designate for secular educational purposes.

Perfectly voluntary in that sense, that’s how they were describing.

And the overwhelming majority wanted this.

And they wanted it interesting enough for the same reasons because they said religion had the tendency to correct the morals of men at least the good citizenship just the same as Pennsylvania now says.

But it seemed to me that Madison saw two fallacies in this, Your Honor.

One was, he said, “Who does not see that that authority which can establish Christianity?”

All of it now, and this is 99% surely of Virginians then, established Christianity, the exclusion of other sects may with the same authority establish one sect of Christianity.

Secondly, he saw that it’s deeper than that.

It’s deeper than that.

It’s — that the State should not use religion for its ends and that’s what the — the Solicitor General Baltimore tells me they’re doing.

They want to have discipline and authority that he says at the beginning of the day.

To that I say, “Yes, precisely.”

That is the State now using religion.

Where should Virginia use the State?

Potter Stewart:

You’re addressing yourself historically to a matter of a — the wisdom or unwisdom of Virginia’s policy.

Other states have different policies.

Massachusetts, if I’m not mistaken, had an established church well into the 19th century, (Voice Overlap) the congregational church.

It’s a matter of wisdom or unwisdom, and what a state might want to do by its organic law or by its statutory law, is something else.

What we’re talking about is, is the Federal Constitution and what that requires the State to do or not to do?

Henry W. Sawyer, III:

Well, I — I

Potter Stewart:

Certainly it requires a state to respect the free exercise of the religion of every inhabitant of that state, does it not?

Henry W. Sawyer, III:

It does indeed, but I don’t think that the correlative of that is that free exercise means that you enlist the State to help you exercise.

Potter Stewart:

Isn’t it true that states, every state helps religion in a multitude of ways.

It gives them fire protection, police protection.

It gives them the usually tax exemption or —

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Henry W. Sawyer, III:

Well, of course —

Potter Stewart:

Only religion?

Henry W. Sawyer, III:

Yes, sir.

Our protection is of course for the benefit of the community because a boardroom next door might catch one if the church burn.

But the tax advantage is certainly — certainly a — favorite words that — but that’s a refraining even there from an affirmative act of taxation — unfortunately, we haven’t got that case.

And I would say, I would like to disassociate myself with the view that once you find any kind of possible encroachment of the First Amendment that all encroachments are of equal weight, I think that you may have been voiced yesterday.

I suppose if the Religious Clause of the First Amendment comes as close to an absolute as any we have, but I submit that there is no absolute — absolute known to the Anglo-Saxon law.

And even this one must give way to the doctrines of de minimis, which I think clearly applied that rubrics on the coins.

Does anybody really suppose that any court at any level could entertain from the standpoint of standing or de minimis, or to put another way doesn’t have the wit as lawyers trained in the Anglo-Saxon tradition of de minimis standing to get rid of a case like that?

Who can complain?

Hugo L. Black:

What do you mean by de minimis?

Henry W. Sawyer, III:

Just that the incursion there is so —

Hugo L. Black:

The violation — the violation of the Amendment is so little.

The Court is known always as the Court.

Henry W. Sawyer, III:

Yes, sir.

I think even the Religious Clause of the First Amendment is subject to the doctrine —

Hugo L. Black:

But do you think —

Henry W. Sawyer, III:

— at some point of de minimis.

Tom C. Clark:

Do you think that that means that the First Amendment doesn’t forbid it or the Court decided they wanted to enforce this small or called it such a small violation?

Henry W. Sawyer, III:

Well, I cannot separate, Your Honor.

I really — I’m not convincing but I really think that you can’t separate what a court will do from what the First Amendment forbids.

I think under our system of ad hoc decisions of judicial parsimony, you can’t really theoretically separate — in other words, there cannot be any violation of the First Amendment in vacuo.

There can only be a violation of the First Amendment in terms of a justifiable issue.

And that —

John M. Harlan II:

(Inaudible)

Henry W. Sawyer, III:

Well, I could not — well, not a religious exercise.

No, sir, but I think it’s a religious declaration.

I couldn’t handedly say that.

I just think that —

Hugo L. Black:

But I suppose what you’re saying is that there’s no part of the First Amendment is applicable to the State that gives any person the right case, call on the State to open up a place for him to practice religion.

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Hugo L. Black:

That religion is at least religion as a voluntary thing for the people to infer.

I would think probably, that’s what you think the idea about free exercise.

Henry W. Sawyer, III:

Well, that was I was trying to say.

Hugo L. Black:

Throughout the ages, politicians have wanted to get hold of religion and they’ve done it now and then to the great discomfiture religion in the final analysis.

Henry W. Sawyer, III:

I’d like to say another word about the testimony.

I don’t think that we should gloss over these doctrinal and sectarian differences.

I think they’re profound and I think you have it here.

I’m speaking again now really in terms of free exercise, I suppose, at least in terms of detriment.

I refer or to take as my text at least, the testimony of Dr. Grayzel.

Now, this isn’t — he’s said here yesterday that there are some minor doctrinal, minor differences in these versions of the Bible and the counsel, I believe, even lumped in the Jewish Holy Scriptures were minor differences.

The New Testament, the concept of Christ, a man who historically lived as being the son of God is, as Dr. Grayzel testified to Judaism, a blasphemy.

This was, in fact, Christ’s crime.

It is a blasphemy.

You can’t gloss this over by saying there are some minor differences.

He pointed out that there’s ridicule of the Jewish hierarchy throughout the New Testament.

He pointed out that — think of it gentlemen, the scene of the trial of Jesus before Pilate.

He said this has been where the multitude Christ not for Barabbas, but for Jesus and Pilate washes his hands and the version exculpates the Romans for the death of Christ.

And then the Jews say and they’ve so described they say, “His blood be upon us and our children.”

And Dr. Grayzel said that sentence has been responsible for more anti-Semitism and any single sense in history I can’t doubt it.

And I don’t think we’ll — I don’t see any reason why it shouldn’t — shouldn’t be said and cannot read the New Testament in those eyes, not the way perhaps some of us read it, without this kind of thought of all in our minds or had it read to us without realizing that it is consistently implacably and in some cases, systematically anti-Semitic.

Sometimes deliberately, I am sorry to say.

And Dr. Grayzel pointed out that that money was cross-examined inadvertently about the story of the Good Samaritan which would appear to everyone, perhaps to be a very nice story.

And he pointed out that deliberate anti-Semitic bias of that story and how historically the story had some origin and Jewish roots, but that the Samaritan have been substituted for the Israelite, it originally being a story of the three great nations of Jewish society and their varying responsibilities in terms of the laws regarding cleanliness and disease.

And surely, that ought to be enough of it.

That would be the end of the matter.

Byron R. White:

But you must — you must then disagree with being wide goes said that the, what did you say, he said, “In my opinion, the Bible is not a sectarian book.”

Henry W. Sawyer, III:

Well, of course he was the School District’s witness and I did disagree with —

Byron R. White:

He’s also a dean of the divinity school.

Henry W. Sawyer, III:

Well, I’ll accept everything he said on cross examination.

He then said later, Mr. Justice White that, well, he really would say it was nonsectarian within the Protestant sects.

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Henry W. Sawyer, III:

Well, first he said within Christianity and they gave a great caveat as to the Catholics.

Quite a caveat, he said “Well I’m not a Catholic and I’m not qualified to say” and they have footnotes and transcriptions.

And then so we came down to the Protestant sects and then he finally agreed that at least some people thought it was the new —

Byron R. White:

(Voice Overlap)

Henry W. Sawyer, III:

— Revised Standard Version was highly sectarian that there’d been a public burning of that as late at 1952.

I don’t think he came out with anything more finally than it was nonsectarian among the Protestant sects and that’s what the lower court found.

And he also said that as literature and as history, the work was secondary and that he primary —

Byron R. White:

That he had to do a version that would also be nonsectarian.

Henry W. Sawyer, III:

Well, I think that later on, Your Honor, he — he had a caveat as to the Catholic in the record.

On direct examination, I think, he said that.

But let’s assume, Your Honor, that it’s totally nonsectarian within the Christian church, and I think I can demonstrate from our evidence that that just isn’t so that the Catholic and sect goes which we quote, “They very — the Catholic encyclopedia make it very clear that the Catholics regard the King James version, which had been characterized as the chief arm of the Protestant revoked through his dedication is profoundly anti-Catholic, speaking of the Pope as that man of sin.

And the Catholics characterized it as a work full of error, and a work which has deliberately been used for proselytizing.

Now, whether that’s true or not, makes no difference if Catholics or some Catholics still believe and it’s no accident, I believe, that all of the Bible reading cases, and I think there’s no exception to this, they were brought during that early period.

The 1890s and 1900 were brought by Catholics and in fact, the most shameful page in Philadelphia’s religious history throughout of this controversy were a few blocks from the place where this case was tried, in the infamous Nativist Riots in 1844 brought about by the Native American Party who drew out of what version of the Bible should be read in the public schools.

Bishop Kendrick had said that do a version ought to be given equal status and the no nothing seized upon that and said “The Catholics are trying to throw the Protestant Bible out of the public schools.”

The riots followed and people were killed, churches were burned.

In fact, the Catholics finally were given shelter in a Quaker meeting-house at (Inaudible).

And this is not a typical page in Philadelphia’s religious history, we pride ourselves on religious tolerance but that happened in Philadelphia, and concerned this very thing and here, whether it would be the Douay Version or the King James version that should be read upon establishment.

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

No sir, because I find it, in the first place, it is not common to all of the Bibles in this sense.

There are books that are omitted from the Douay Version and books that are omitted in King James.

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

Well, no sir.

And it wouldn’t even on this type of establishment of course when they were but even on the question of sectarian practice in preferring one religion over another.

Dr. Grayzel testified that the Old Testament was — was warded through with Christological references as he put it.

In other words, they’re going back in translation, and inserted references in things like Isaiah in such a form as to predict the coming of Christ which he, as a Jewish scholar, took strong exception to both from the standpoint of religion and scholarship.

And secondly, you’d have the problem of Bible reading as such.

You see, you have the problem that some sects don’t believe that you should just read the Bible.

As Dr. Grayzel says in Judaism, “You don’t read the Bible, you study it.”

And the Catholics are quite clear that the Bible should be pervade to the members of the Catholic Church by the church and with its explanation and with its — and under its authority.

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Henry W. Sawyer, III:

So I think you have that problem even with the reading of the Old Testament and of course you’d still have the establishment problem.

And I’d like to —

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

I’m sorry to say I have not, sir.

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

I do not know if they do it.

Thank you, sir.

Hugo L. Black:

Am I wrong in thinking that there was the time that was thought to be a sin if translated by a woman so that people could read it.

Henry W. Sawyer, III:

Oh indeed, sir.

One of this is one of the Martin Luther’s quarrels and the printing of the Bible in the vernacular, I had in summary or hastily I understand on the conclusion of the course but I understand that it’s quite true.

Byron R. White:

You read it very well that one I might say.

Henry W. Sawyer, III:

Yes, sir.

And I think that as far as proselytizing is concerned, that this book had shown an immense power to proselyte the either version, to proselytize in 2000 years.

And I don’t — I don’t deplore this but I think we should recognize it as a reality, and I —

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

I think they are doing it for another reason.

Yes, sir.

And I might say here that to — thus speaking of Engle or speaking of these other line of cases, the focused attention on what the children do or do not do is irrelevant to the Establishment Clause.

It may be relevant as to the Free Exercise Clause but it’s irrelevant, it’s what the State does and in that respect, you cannot distinguish Engle and Vitale unless you —

Byron R. White:

Do you say that — do you say that to find the — find that the State has made a law respecting an establishment that that State need not to act in coercive way at all, that the law doesn’t mean coercion.

Henry W. Sawyer, III:

Not a bit, sir.

Byron R. White:

Because it means action.

Henry W. Sawyer, III:

It means action.

And the question must be then whether in fact it concerns and respects religion and we have that question and that’s argued here because they say it concerns morality.

And then perhaps whether it’s de minimis but it makes no difference.

If you had a — suppose you had an actual established church, but you wouldn’t have any of the lesser violations just because people didn’t have to go to it, or didn’t have to have their taxes devoted to it.

In fact, that gentleman that came up yesterday who moved into a community of where the Methodist had established a church and you’ve asked whether there’d be any detriment to him, I don’t think there needs to be any detriment.

I think he has a constitutional right to live in a society that doesn’t have an established church.

Potter Stewart:

Well, what would — what would be his standing?

Henry W. Sawyer, III:

His standing I think would be just that.

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Potter Stewart:

Let’s assume he was treated economically and socially and personally with the greatest respect and courtesy that he could show no economic detriment, absolutely no social stigma, nothing.

And that he was completely free in that community to practice his active atheism, his nonbelief completely so and he respected his rights to do that in that community.

What standing would he have to complete?

Henry W. Sawyer, III:

I think —

Potter Stewart:

I agree that —

Henry W. Sawyer, III:

— that he would have standing.

Potter Stewart:

I agree with you that it would be grossly unconstitutional under the decisions of this Court.

But what would your standing be?

Henry W. Sawyer, III:

Well I — I think he would have standing because I think that he has — he has a — the Constitution gives him standing because it gives him a right.

And the right that it gives him, I submit to Your Honor, is the right not to live in a society which has an established church, whether or not he can demonstrate that that establishment is a detriment in some measurable way through him.

It is a detriment to his rights as a — as an American under the Constitution.

Now, that doesn’t mean, Your Honor, that a dwindling modicum of establishment stand at the point of the rubric on the coin which if it’s anything is an establishment, I think, necessarily always — there isn’t also a dwindling amount of standing.

And I think when you get to that point, then that standing is so miniscule, the incursion is so slight, the amount of the establishment is so slight that the Court dismisses it as de minimis.

And probably, I would suspect on the basis of standing.

Hugo L. Black:

Have you discussed in your brief this problem that was raised as to whether or not this is de minimis?

Henry W. Sawyer, III:

Oh yes sir, I — I have discussed that in this sense.

As an establishment de minimis?

Hugo L. Black:

Yes.

Henry W. Sawyer, III:

Yes sir.

I’ve discussed it in the sense that here you have and we say you have a measurable — a religious ceremony which is — which is of measurable quantum and which has some reasonable impingement upon the individual that secondly the State is doing more than altering the little counters that step out of coin.

And there’s necessarily some mechanism behind this as first to purchase, distribution of the King James Version of the Bible throughout the school system.

There then the rules and regulations that I quoted.

There’s then the time set aside.

There is the mechanism for excusing but this is sufficient participation — active participation by the State, when it’s combined with the fact the ceremony is so clearly religious, to take it out of the de minimis clause whereas the uttering of the single word or the two words under God is certainly — certainly much more borderline and probably de minimis.

I would like to turn, if I may, again just a little bit to the situation in Virginia.

And the reason I do so is because I think there’s no clause of the First Amendment that his authorship is so obvious and the background is so obvious, and the situation matches are so closely.

Both of these laws thought there was very much the same objectives as specifically expressed in the preamble of the bill there and the bill in Pennsylvania

Hugo L. Black:

But do you happen to read a recent article of the Washburn Law College Journal that takes the position that Madison was not responsible for the First Amendment and that, as a matter of fact, he failed to get his amendments through and that the changes were made were so material, that they took away the idea of the Virginia remote instances.

Henry W. Sawyer, III:

But Your Honor, I have — I have not read that article and I hope that isn’t true, not just because of this case but because I have always assumed that so long that the James Madison leave — I’d even understood that Justice Rutledge in Everson in that tremendous dissent of his in the Everson case where he reviewed all of the circumstances of that bill at assessment flight had indicated and I thought that he’d said that we even had grasp of earlier versions in Madison’s handwriting.

Hugo L. Black:

I’m afraid I said it too.

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Henry W. Sawyer, III:

I think you did, sir.

Hugo L. Black:

The reason I have to stay by this article.

Henry W. Sawyer, III:

Well I — I have been disturbed by it too, although I haven’t read it but I shall.

But you see it seem to me Madison saw the problem so clearly there, and it seems to me it highlights the problem and I’m speaking now just the Establishment Clause right now.

Because I think we have just the perfect and typical establishment here in so many ways, lesser one in extent.

But what did Madison see wrong with this Assessment Bill after it had its excused provision?

It assumed both sides of the coin.

Of course first of all he said, “This is using religion as an engine of civil policy.

And there is to obtain very worthy civil objectives, you will use religion as your instrumentality.”

And we heard that argument developed that at length here yesterday.

And Mr. Burch I think fell in the exact same error as Patrick Henry, when he supported this bill later on when he became governor.

And that is — this is a good thing for people and you’re going to use this particular way in order to, so to speak, establish either tranquility in society or tranquility in the classroom.

And after all, if it’s good for school children, why isn’t it good for the general public?

Why not have the city council of Philadelphia pass an ordinance saying that the mayor will going to read ten verses of the Bible on every radio station every morning at a certain hour, to open the day if it sets the —

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

No, I don’t sir.

I’m glad it isn’t tranquil.

And I shouldn’t perhaps have used that word because I’m not sure it was the word of counsel but perhaps one of the members of the bench.

He did speak of authority and discipline and they kind of settled them down.

Arthur J. Goldberg:

(Inaudible)

Henry W. Sawyer, III:

Yes sir, and I think that if it settles down children, why the schools?

Why the schools?

It’s always the schools.

Why shouldn’t — if it’s good for school children, it’s good for everybody and in fact —

Potter Stewart:

Are you suggesting it would beyond constitutional for the men of Philadelphia if he was so disposed and if he could get the — or pay for it, now the radio time to say ten — read ten verses from the Bible over the radio every morning?

Henry W. Sawyer, III:

Now, if he wanted to do it, it wouldn’t be but I said if the city counsel past the statute saying he should do it.

And that which should be ready and that the radio stations are giving the time, and you’d have the less of the captive audience than you have in school.

Yes, I think that would be an establishment.

I don’t think he could do it.

As a mandated thing by the legislature, I think not.

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Potter Stewart:

Well, each one of the counsel men can do it, couldn’t he, if he wanted to?

Henry W. Sawyer, III:

Well, if he pays for the time.

Potter Stewart:

That’s what I’m saying.

But he’s got a constitutional right to do it.

Henry W. Sawyer, III:

Oh yes sir, sure.

But I’m proposing a different problem.Of course, he could.

I have no reservation about that at all.

He can do it on television if he can pay for the time or he can go in the street corner and he’s got an absolute constitutional right.

Hugo L. Black:

Do you see any conflict between these two concepts, one that the State shall keep its hands completely off religion but not have anything to do with it?

It’s left for the people who voluntarily choose it.

And the other provision that says if the people shall have that right freely to exercise their religion whenever they desire?

Henry W. Sawyer, III:

Yes sir, I think there is potential conflict in those two concepts.

Hugo L. Black:

In what way?

Henry W. Sawyer, III:

I could — if I may give you an example, the most typical one that comes to my mind is the question of Chaplains in the Armed Forces.

That case if it ever comes, I think, will bring into square conflict, the Establishment Clause and the Free Exercise Clause because it is certainly much of an establishment.

You could hardly say that was “de minimis”.

On the other hand, when the State, by its own coercive legal power, physically separates a man from his religious activity, his religious sources, then you have also gravely damaged his free exercise, unless you provide him with an alternative.

And I don’t propose to settle that question here.

I would find it more comfortable to argue that the Free Exercise Clause there prevails over establishing.

That’s one instance when I think they come into direct conflict.

Hugo L. Black:

What are those?

Henry W. Sawyer, III:

The other instance, the other kind of instance that it would seem to me would be the taxation situation.

There, you see taking the famous tax to power, and the tax is the power to destroy, taxation being an affirmative exception by the State, you may have a free exercise conflict against an establishment conflict.

And I think there are two instances which kind of — I do not think there is a conflict here.

And if Justice Stewart sees one, I do not think there is one in this case.

I think they can come into conflict.

And on that note, let me discuss Barnette, if I may, because I think Barnette has been — has not been cited properly here.

I understand Barnette to be a situation in which the Jehovah’s Witnesses are not complaining about professions of belief and disbelief but about the idea that to raise your hand towards the flag was violation of the (Voice Overlap).

But, I submit that the flag salute and particularly then before it had the ‘54 Clause in an under God.

The act of saluting the flag is a secular act to everyone except to Jehovah’s Witness or maybe some other few sects.

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Henry W. Sawyer, III:

But it’s a secular act, and that’s the reason that Court there stops short of prohibiting the activity.

They simply because it’s enough there if you simply say you, if your religion thinks of it as a religious act, you don’t have to participate.

But it being to everyone else a secular activity, then you have no standing or did they ask by the way and that’s another point, they didn’t ask for it and then the doctrine of judicial parsimony why should you do it.

But even if they had, you have no right to stop a secular act just like the conscientious objector situation; you make a special exception when the religious basis, the war goes on.

That is the difference, it seems to me, and Torcaso by the way have somewhat the same situation.

In the first place, in Torcaso’s case, he just asked for a writ of mandamus and that’s where we start and that’s what the Court gave him.

And I don’t think you were asked to do any more than that.

He says,” I want the office.”

And he bought, he didn’t asked for injunction against the oath the way we did or anything about, he just said, “I want the office” and he used the appropriate writ for it and he granted the writ.

Potter Stewart:

Torcaso is a free exercise case.

Henry W. Sawyer, III:

Yes, sir.

Potter Stewart:

Was it not?

Very clearly it’s a free exercise case.

Henry W. Sawyer, III:

Torcaso?

Potter Stewart:

Yes, you read this last summer —

Henry W. Sawyer, III:

Yes.

I think it’s a free exercise case.

Potter Stewart:

And would you say Barnette was a free exercise case?

Henry W. Sawyer, III:

Most definitely.

But I’m just distinguishing why you don’t take the whole ceremony out, because it’s a secular ceremony and not a religious one.

Potter Stewart:

I understood but to — but to that particular sect, it violated their writ and their own religious principle —

Henry W. Sawyer, III:

Yes, sir.

Potter Stewart:

— to salute the flag.

There are many other examples beside those you gave whether it’s a clear conflict between the Establishment Clause and the Free Exercise Clause, prison, state prison, federal prisons.

Henry W. Sawyer, III:

Well, I applied the same rule as — as Chaplain and the Armed Forces of the prisons.

I mean, unless you learn — you can’t very well say well they’re being punished because then you’d be saying, well, they’re being punished in part of the person’s denial, he wouldn’t that.

So I think they’re in the same category really as the people in the Armed Forces where the State has physically removed them from their religious sources.

Potter Stewart:

I gather that you suggested in your answer that if there were conflict, or at least be in that context where there is a conflict, if you had engaged for you with the judge you would think the Free Exercise Clause should prevail over the Establishment Clause?

Henry W. Sawyer, III:

Chaplains, yes sir I would — I would.

I was saying that it seems to me that the vice that Madison saw in the Assessment Bill of using religion as an engine of civil policy applied here and I’ve cited some of the arguments were made yesterday.

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Henry W. Sawyer, III:

I’m asking solely on the other side of the coin and I think we have that here and that is that there’s a kind of a bargain strike because what does religion get out of the — out of the arrangement, I don’t suggest anything venal but this arrangement is typical of an establishment.

It gets the State’s ejus in providing the measure — the audience.

Now, we’re talking establishment now aside from the excuse what the State provides the audience.

And I suggest that this kind of double accommodation that it typifies establishment everywhere that it exists.

And I think that — that was in the Assessment Bill and I think it’s here.

In other words, the State lands it’s ejus to in some way, in some way putting an official sanction or in some way accommodating or aiding the religion or a group of religions.

And in exchange, the religion is supposed to fulfill a civil end of the State.

And there are — have been certainly in history, examples where that went terribly far indeed where the religion was part of the repressive engine of the State and by the same as token, the religion was quite a state-aided it in its preeminent position.

We don’t suggest that but I say it’s a whole market of establishment and I think that this bill is an example of it and I think the legislature so intended here to use religion as an engine of civil policy for very worthy causes.

But I think in violation of the Constitution nonetheless —

Potter Stewart:

Which was the first decision of this Court which held at the Fourteenth Amendment embodied or absorbed the Establishment Clause?

Henry W. Sawyer, III:

I think it was Murdock versus Pennsylvania, Your Honor —

Potter Stewart:

Which one?

Henry W. Sawyer, III:

Cantwell versus Connecticut but Murdock versus Pennsylvania but I’m a little bit unsure about that, it’s either one of the other of the two.

Potter Stewart:

Well, Cantwell involved the — it actually involved the free exercise.

Henry W. Sawyer, III:

Yes, sir.

Potter Stewart:

But I think you’re right in dictum and often said the whole — that both were incorporated.I was wondering which case it was actually involved.

Everson was it or was there –?

Henry W. Sawyer, III:

Where this kind of clause is involved.

Potter Stewart:

I know but under the Fourteenth Amendment because as we all know, well as we’ve said earlier, the State used long after the adoption of the First Amendment, many states had actual established religions and the good many historians think that one of the very reasons for the Establishment Clause in the First Amendment was to be sure that the Federal Government didn’t establish the church and to leave the States free to establish their churches if they wanted to, or not to if they didn’t want to.

Henry W. Sawyer, III:

I think that’s respectable as to option —

Potter Stewart:

It was the local the local option — the local option idea.But now we know that the Court has held that at least that free exercise part of the First Amendment and the — and at least to some extent the Establishment Clause part of the First Amendment has been absorbed by the Fourteenth, and I wonder which case, was it the Everson case (Voice Overlap)

Henry W. Sawyer, III:

I would say — (Voice Overlap) in which that was involved.

Yes, sir.

Potter Stewart:

There was the Louisiana School Book case, wasn’t there?

Well, perhaps we won’t —

Henry W. Sawyer, III:

There was — you mean a Louisiana School Book case before Everson?

Potter Stewart:

Yes.

Henry W. Sawyer, III:

The purchase of school books for parochial school —

Potter Stewart:

That was it, I think.

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

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Henry W. Sawyer, III:

Yes sir, I just had the impression that was after Everson, but I’m — I’m sure I stand corrected.

Potter Stewart:

But it’s a relatively — it’s a relatively recent doctrine, isn’t it?

Henry W. Sawyer, III:

It is a relatively recent doctrine indeed, sir.

I don’t fall over that.

I think it’s rather firmly embedded now in a number of decisions of this Court.

Byron R. White:

How many, about three or four?

Henry W. Sawyer, III:

Well, you’ve got Everson, you’ve got McCollum, you’ve got Zorach and then you have Barnette in the sense now.

Potter Stewart:

No, we agreed earlier that was a free exercise case.

Henry W. Sawyer, III:

Oh just on establishment.

Potter Stewart:

And so as Torcaso?

Henry W. Sawyer, III:

So as Torcaso and now you have Engle.

Potter Stewart:

You have Engle.

Henry W. Sawyer, III:

I think that’d be it.

Now, we think of course in McCollum controls, too.

If Engle it seems to me just clearly controls from the standpoint of establishment, I just don’t think there’d any question you could possibly, you have to reexamine Engle.

It’s what the State is doing as I say, the acts of participation mean nothing in terms of establishment.

But we think McCollum controls and so that the — so did the lower court and Chief Judge Biggs’ opinion, he so states.

And I should think you have too because in McCollum, you really had a couple of preachers that were really less, less of an establishment in one respect and certainly less in the free exercise.

And now I’m on both clauses because I’m just saying the case controls.

After all in McCollum, at least that the religious material was pervade by private instructors and not by the authority of the teacher and in the sense that’s less of an establishment.

And then under the Free Exercise Clause, two differences are that in McCollum and this is important I think under free exercise, you had to volunteer to get the instruction which is certainly a lot less, I would think, a lot less of a violation than to have to volunteer out, so to speak, and decide not to have it.

And the other would be that you — at least got your own religion if you volunteered and you didn’t get anybody else’s.

And that the lower court thought McCollum because they decided this case of course before they had the benefit of this Court’s decision in the Engle case.

Well, we say that there is an establishment.

In addition to that it is clear as crystal and just ingenuous to say that this doesn’t prefer one religion over another.

And how fine you chop it is another thing.

But certainly at the grossest of the broadest than any sense of the word it prefers Christian religions over non-Christian religions.

I think it goes further than that and that you cannot do and that statute does.

It is a religious exercise.

It seems to me, it was intended to be a religious exercise.

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

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Henry W. Sawyer, III:

I think it’s ingenuous to suggest that the legislature had anything else in mind but that.

I don’t think that you can use the word morality to encompass all of these pervade to the minds of children by this book.

And there will be many, many things read out of the King James Version will rule exclusively — if you can separate the challenge but it will exclusively concern religious concepts and ideas without any distinguishable moral truth.

Certainly, citations could be multiplied endlessly in terms of ritual, in terms of many kinds of beliefs that are religious in nature and haven’t any but of most minor degree of morality.

And if you’re teaching morality again, you would hardly provide for excuses that pointed out, and secondly, why would you have no comment, every other subject the secular subject is taught, is taught with comment, why not this one?

William J. Brennan, Jr.:

Mr. Sawyer what — have you said in this word of argument that, well even if it is religion, it’s religious tradition.

Henry W. Sawyer, III:

Oh, Your Honor, that’s just simply saying that if — if the legislature for Pennsylvania has traditionally had an act that violates the First Amendment, then it’s entitled to continue now.

Their argument goes a little further than that because it says that the duty of Government and they use the word government as a whole, presumably to include the judiciary and then in the sense, of course it does.

The duty of Government is to be neutral about these matters and if you decide to take this practice all out since it is traditional, that is being unneutral.

Well, that just seems to me to relegate the role of the judiciary.

I don’t know what the function would be as to anything that wasn’t noble.

And the fact that it’s old has it seems to me nothing to do with being neutral or unneutral.

We’re complaining that the legislature of Pennsylvania has been unneutral and under the system we have, I think we’ve come to the judiciary to set the matter straight if they’re minded to agree with us.

And this could hardly be said to be unneutral just because in addition to those facts, the unneutrality in our view, it is the unneutrality happens to go back quite a while.

I think the tradition is not to be stuck up but let me say this very candidly.

I think it is the final arrogance to talk constantly about our religious tradition in this country and acquaint it with this Bible.

Sure, religious tradition, whose religious tradition?

It isn’t any part of the religious tradition of substantial number of Americans of a great many — a great many things and really some of the salient features of the King James Version or the Douay Version to that matter.

And it is just to me a little bit easy and I say arrogant to keep talking about our religious tradition.

It suggests that the public schools at least to Pennsylvania or a kind of Protestant institutions to which others are cordially invited.

And I think to some extent they have been in our state and nobody and maybe in times gone by, that didn’t make very much difference or that those that we’re injured were no perhaps legal because of the newness of this doctrine, Your Honor, or psychological or even financial position to complain much about it.

But we have here in the schools of Pennsylvania, the conducting mandated by statute day after day as an exercise, the reading of the Sacred Book of Christianity.

And I submit to you gentlemen that that is as the lower court found as a fact, finding of fact conducted there as a religious ceremony.

I might say the footnote of that that the lower court found as a fact that there was a higher demeanor and standard of the Court that required that during this time.

Now, that isn’t a bad thing if you’re going to read the Bible honorably but it’s certainly demonstrates again, if it’s higher than other secular subjects, it is regarded differently and can only be regarded, I think, as a religious ceremony.

Potter Stewart:

Mr. Sawyer, the District Court didn’t give any attention at all to the claim that the statute interfered to the free exercise of the plaintiff’s religion.

Henry W. Sawyer, III:

On the second opinion, Your Honor —

Potter Stewart:

It just didn’t —

Henry W. Sawyer, III:

No.

Potter Stewart:

— it decided the case entirely on the Establishment Clause.

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

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Henry W. Sawyer, III:

Yes sir, they did on the second opinion.

Potter Stewart:

Is there any evidence in the — is there any evidence at all in the record outside of the father’s — the father’s subjective prophecy as to what actually happens to any child who wants to be excused and not to listen to this or just nothing?

Henry W. Sawyer, III:

There’s nothing.

I submit that the circumstances are at record and you can judge.

It’s not disagreed upon that Bible reading, prayer, spread of religions, school announcements follow seriatim.

Without any more than a decent clause and I suggest that — I just can’t see the practical matter and this is what Mr. Schempp said.

How could you excuse the child from one and not the other?

Unless he stands immediately outside the classroom door, which happens to be typical of punishment, but that’s incidental perhaps but he stands immediately outside and when he hears the class finish the recitation of the end of the Lord’s Prayer and he hears the almanac, comes first and back in again.

Now, whether that would be done that way, or some other way, well, I just submit as a matter of logic.

He either misses the pledge of allegiance which greater even more greatly as Mr. Schempp testify would compound the confusion as to what he dissents from and there’s enough equation now, it seems to me, or possible when Mr. Schempp reasonably apprehended I think between some time religious dissent perhaps and then you go to atheism that maybe equated with un-Americanism and if you’re missing the flag salute and in any way, then misses the school announcements.

It’s a price you shouldn’t have to pay.

Why should he miss the school –?

Potter Stewart:

We don’t know that he would or then anybody would have to pray — to pay that price or any other price on the evidence in this record.

Henry W. Sawyer, III:

No, I’m arguing that the inference —

Potter Stewart:

That under the — under the existing system —

Henry W. Sawyer, III:

We have to.

Potter Stewart:

I agree.

You’re arguing (Voice Overlap) makes sense but there’s no evidence as to what actually would happen to any child who after the — who has just not to have any part of this.

Henry W. Sawyer, III:

None whatsoever, (Voice Overlap) sir.

Potter Stewart:

And I certainly — we can not assume, we can not assume that there would not be psychological or social pressures, but I don’t know that we can assume that there would be either when the absence of evidence, can we?

Henry W. Sawyer, III:

I believe it can, Your Honor.

I think the courts have done it before, I think Justice Frankfurter did it in his concurring opinion in McCollum.

Potter Stewart:

Now then, that wasn’t court doing it?

Henry W. Sawyer, III:

Well, it wasn’t the court doing, but I, I would suggest that the court can always recognize the facts of life and judicial notice of the — as Justice Frankfurter said that children are not known for their capacity or their willingness to dissent.

I think that we just know this.

It’s a thing in life.

Potter Stewart:

This might become a stylish thing in school, not to listen to that during prayer every morning, and then — then there’d be a conformist, you wouldn’t listen to the prayer.

Henry W. Sawyer, III:

Well, there might be some who are walking 50 miles to avoid it.

I’m just saying, if I may, sir in closing, that we rest our case most strongly on the Establishment Clause.

We ask, as far as the Schempps are concerned, for nothing more than what I think we would suppose them to be entitled to and that is they do not in complying with the State’s compulsory school attendance law and sending their children there that they don’t have to at home and in the church contradicts what is taught or pervaded the children in the schools.

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

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Henry W. Sawyer, III:

That seems to me would be their inherent right and that they don’t have to pay any price, any price at all no matter how slight to avoid that.

Potter Stewart:

Who has the right, the child or the parent?

Henry W. Sawyer, III:

Both and here, both have sued.

I think the McCollum case established completely, there only Vashti McCollum, the mother brought the suit, not the child.

Interestingly enough Your Honor, the record in the trial of that case, seems to indicate, it assembles situation but as I read it, seems to indicate that one of the troubles was that, Mrs. Vashti McCollum was an atheist and she was concerned because the young McCollum was becoming rather interested in going to this release time ceremonies in the school.

Potter Stewart:

Didn’t he get — does he have a constitutional right to do that?

Henry W. Sawyer, III:

Well, to do it, oh he brought her suit —

Potter Stewart:

— some interested in it and believing in it.

Henry W. Sawyer, III:

I don’t think if there’s any doubt and he might be entertained as a litigant but he wasn’t.

And the Court there I think recognized that the child has a right and the parent has a right, both as guardian of the child and in the parent’s own right.

So I think the right, in other words, to answer your question is dual.

But you know that McCollum situation suggest another problem here.

This might create divisiveness within a single family as we had in instance even mentioned here yesterday and McCollum case apparently was that, although I don’t think it’s in the opinion itself.

Thank you, Your Honor.

Earl Warren:

Mr. Killian?

John D. Killian, III:

Mr. Chief Justice, members of the Court, I will — amicus brief as the Court has indicated a bizarre big thing, but what we are concerned with here today is a practice that goes back in Pennsylvania far into the days of its history.

This practice as before the Court today is a codified practice.

The codification occurred in 1913, but the practice goes back deep into the colonial days of our State.

The practice is not as the other as Mr. Sawyer indicates a religious practice; it is an educational practice.

It is a practice in the schools which has educational values.

We’ve been talking about the moral values that are provided by this practice.

It is not a religious practice.

Dr. Boehm, the Superintendent of Public Instruction in his testimony in the lower court was asked whether this practice contained educational value and in his testimony at page 89 of the record states that he thinks that the reading of the Bible, I’ll read out a few words “is one of the last vestiges of moral value that we have left in our school system.”

This stands out, I quote him, “as a strong contradiction to the materialistic trends of our times.”

Certainly, this practice reflects the religious origins and traditional religious levin of our public life.

The practice of reading the Bible existed in the colonial days as a reading exercise and for the purpose of moral instruction.

But it is fundamentally and has always been in Pennsylvania, educational practice.

It would seem to me that when you’re studying the arts, you have to study sacred themes, you have to study sacred music if you want to be a musician, and if you want to be a good citizen and you want your schools to educate you that way, you must study morality and what better source of morality is there than this Bible.

The legislature of Pennsylvania was codifying a conclusion that the people of Pennsylvania long before reach that the Bible is a source of this morality.

Now, the decisions of this Court have made reference to the fact that we are religious people, that there is a religious labeling on our society and we manifest and express this religion in many ways.

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

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John D. Killian, III:

Many of these have been briefed and discussed then these arguments are need not go into but the Court has also said in some opinions that if we’re going to work this levin out of our society, we have to do it by — through the individual and through groups and not through the Government.

The Government should be neutral, it should not be hostile.

And we feel that the ripping out of this practice out of the public schools as an educational practice would express hostility to religion.