School District of Abington Township, Pennsylvania v. Schempp

PETITIONER:School District of Abington Township, Pennsylvania
RESPONDENT:Edward Lewis Schempp
LOCATION:Abington High School

DOCKET NO.: 142
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 374 US 203 (1963)
ARGUED: Feb 27, 1963 / Feb 28, 1963
DECIDED: Jun 17, 1963

Facts of the case

The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the school day, students who attended public schools in the state of Pennsylvania were required to read at least ten verses from the Bible. After completing these readings, school authorities required all Abington Township students to recite the Lord’s Prayer. Students could be excluded from these exercises by a written note from their parents to the school. In a related case — Murray v. Curlett — a Baltimore statute required Bible-reading or the recitation of the Lord’s Prayer at open exercises in public schools. Murray and his mother, professed atheists — challenged the prayer requirement.

Question

Did the Pennsylvania law and Abington’s policy, requiring public school students to participate in classroom religious exercises, violate the religious freedom of students as protected by the First and Fourteenth Amendments?

Earl Warren:

Number 119, William J. Murray III et al., versus John Curlett et al.

Mr. Kerpelman.

Leonard J. Kerpelman:

Mr. Chief Justice, Your Honors, this Lord’s Prayer and Bible reading case, which is before the Court today, has perhaps a unique importance for all of us.

The reason is that all of us have certainly at some time, been concerned with philosophical meanings attached to our existence here, see the significance of that existence.

And, all of us have no doubt, directed ourselves to resolution of questions of the goals and means and functions of mankind and all of us have thought and contemplated and no doubt prayed.

Such contemplation and thought, it is in the very nature of man to perform, sapient man, wondering, inquiring man.

And the nature of man being what it is, man has developed over the long centuries complex and subtle systems of philosophy and out of these systems, and out of the historical knowledge and out of faith, man has constructed complex and subtle systems of religious belief.

And out of these systems of religious belief, man has constructed doctrine.

At the same time, extending back through painful ages, man has concurrently developed differing and no less subtle and no less complex systems of government based at different times and different places on different principles.

Perhaps, the noblest of all of these systems of government is that system embodied in the enlightened and libertarian Constitution, including the Bill of Rights of the United States of America.

In fact, the principles embodied in this document are probably so noble and so ennobling that without doubt, many of us experience some difficulty in daily, and drawing ourselves up to the perpetual measure of their standards.

One of these standards, of course, set forth in the Constitution and the Bill of Rights as interpreted by this Court, is the principle that the church and the state in this country shall remain separate and apart and that in fact, there shall be a wall of separation between them which shall be maintained high and impregnable.

Potter Stewart:

I read the First Amendment.

I had never read that language in it.

What’s it say?

What’s the First Amendment say in this subject?

Leonard J. Kerpelman:

That Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, Mr. Justice.

At any rate, it seems that my conclusion, I respectfully say, Mr. Justice, is that the First Amendment has been interpreted to mean that government shall not sponsor or favor any one religion or religion in general and shall — and that religion shall not interpose itself in matters of Government.

Potter Stewart:

But here, you have your Fourteenth Amendment case, don’t you?

Leonard J. Kerpelman:

Yes, Your Honor.

The First Amendment as applied to the states by the Fourteenth Amendment, Cantwell versus Connecticut and that line of cases.

This particular case concerns a rule of the Board of School Commissioners of Baltimore City which is found at page 4 of the petitioner’s brief and it’s very short, I’ll perhaps read it to the Court.

“Opening exercises,” this is a rule drawn under the administrative powers of the local School Board, and this rule has been in existence, I believe, since about 1905.

“Opening exercises, each school, either collectively or in classes, shall be opened by the reading with that comment of a chapter in the Holy Bible and/or the use of the Lord’s Prayer.

The Douay version may be used by those pupils who prefer it.”

This rule, before the advent of this case was amended as follows.

“Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon the written request of his parent or guardian.”

If Your Honors please, I feel that the reason for the First Amendment interpretation having been at some time stated to have erected a wall between church and state is clear.

It stretches back as far back as the history of governments, and particularly as far back as the history of religions themselves.

The cruel and arid features of this history were alluded to in Engel.

Leonard J. Kerpelman:

They were discussed in Torcaso.

They were treated at great scholarly length in the Sunday Law cases.

William J. Brennan, Jr.:

Mr. Kerpelman.

Leonard J. Kerpelman:

Yes, Your Honor.

William J. Brennan, Jr.:

Is the version of the Lord’s Prayer actually in the record?

Leonard J. Kerpelman:

Your Honor, it is not.

The — there was no testimony taken in the case and, therefore, the version which was used could not have been adduced.

This case was before the Court on demurrer and the allegations in the petition did not allege the version which was used.

William J. Brennan, Jr.:

I noticed that in the regular — the section, Douay version may be used by those pupils who prefer it.

Leonard J. Kerpelman:

Yes, Your Honor.

William J. Brennan, Jr.:

Is there anything in the record that shows how they —

Leonard J. Kerpelman:

How they determine that?

William J. Brennan, Jr.:

Yes.

Leonard J. Kerpelman:

No, Your Honor, there is none.

The record would not have that because the case was on demurrer.

No evidence was taken.

I — the rule itself seems to be an invitation to a short religious war every day.

I don’t know exactly how it’s arranged.

I suppose according to the feeling of the majority, the pupils or, perhaps, the feeling of the teacher in the particular instance.

Arthur J. Goldberg:

Mr. Kerpelman, (Inaudible)

Leonard J. Kerpelman:

Your Honor, I can see no constitutional objection to the study of religion, to the study of history, to the study of biblical history, for example, to the study of the Bible as a book of literature.

What we have here, of course, is a religious ceremony set up by the school, conducted by the school and, by very strong implication, having the support and the favor of the school.

And, the ceremony is sectarian as any ceremony must be.

It has apparently become impossible in modern age with the numerous sects and the numerous religions to have a ceremony which is not sectarian.

They were not able to accomplish it, I would say in my own mind, even in the Regent’s Prayer in New York and where we have a ceremony set up that is a different thing from a study.

We expressly disclaim any objection to any study of any sort, including comparative religions or whatever they might be called in junior high school or high school phraseology, any subject.

John M. Harlan II:

There’s one factor in this case that was present in Engel that was not present here.

There’s no suggestion that the state itself composed this prayer, is it?

Leonard J. Kerpelman:

No, Your Honor.

As I read Engel, the phrase “composed or sanctioned” would seem to include — sanctioning would seem to me to indicate choosing or favoring or allowing or permitting any particular prayer.

Leonard J. Kerpelman:

And it seems to me that to interpret Engel as having eliminated only composed prayers overlooks the language in Engel concerning sanctioned prayers.

John M. Harlan II:

(Inaudible)

Leonard J. Kerpelman:

I — well, this is implied from the rule itself, Your Honor, and from the selection of the exercise, as I recall.

I don’t believe our petition called it that.

However, the respondents’ brief did call it a devotional exercise at one point.

I’m fairly certain, I believe so.

The conclusion that, it seems to me that the courts have come to in this country, is that, to quote Mr. Justice Rutledge in Everson as he was reiterated in Engel, “the price of religious freedom is doubled.

It is that the church and religion shall live both within that freedom and upon that freedom.”

Yet, in spite of the fact that the doctrine has become established, it would seem to me that the church and the state should be separated.

There has grown up this practice in the Maryland schools and it’s been tolerated and blinked at for so long that the respondents have now denominated a tradition.

Well, I don’t think, if Your Honors please, that we can repeal the Constitution by this particular means.

A matter which is once unconstitutional does not become constitutional by being allowed to persist, even though it has continued almost as long as Plessy versus Ferguson can continue — had continued.

And, this particular practice has continued without even a Plessy versus Ferguson to support it.

Our society develops.

It matures.

Its institutions develop.

They change.

The practice which one generation had not the courage to question, much less overturn, seems to me must, if we are to advance, be questioned by the next generation.

And that generation must even summons up the courage to overturn certain practices within the constitutional framework when the issue is put to them.

Of course, we are asked how can a religious men have such an attitude, and we are told that the answer to this is that those who urge the petition of the petitioner — the position of the petitioners here not only are not religious but they have set themselves in opposition to religion.

And I respectfully say, if Your Honors please, that this is completely untrue.

It is unreasonable to say this as it is unreasonable to say that a person who is opposed to unreasonable searches and seizures is opposed to law enforcement, or that a person who is opposed to censorship is opposed to purity.

Arguments such as this, I feel, lift a continent of all the stone.

They are non-sect declarations.

The respondents, it seems to me, perhaps have the mark of being something like non-religious for they have said in their brief at page 28 that this ceremony has come to have a meaning which transcends mere religiousness, and I don’t want to — I don’t wish to cast reflections on a particular language that they chose but it seems to me that infinity plus one is still infinity and I don’t know that there is anything which can transcend religiousness.

The petitioners certainly do not urge that there is any such thing.

The petitioners are merely here asking that an injury which they have suffered and which they say is guaranteed under the Constitution be redressed.

The injury is very real.

Now upon the pleadings in this case which are before the Court on demurrer, there can be no argument but that the petitioners have suffered a substantial personal detriment.

They claim and the respondents by their demurrer, have admitted that William Murray, the infant plaintiff, have suffered substantially from the conduct of these exercises, specifically the allegation state that he has lost cast, that he has been regarded with aversion by his fellows, that he has been subjected to reproach and insult and that doubt has been raised as to his morality and good citizenship.

Leonard J. Kerpelman:

And, though all these injuries may be in the psychological or the intangible sphere, yet, they are certainly as substantial an injury as one could perhaps allege.

Potter Stewart:

Is this a — the case is here on a demurrer, on a —

Leonard J. Kerpelman:

Yes.

Yes, Your Honor.

Potter Stewart:

So, there’s no evidence at all in support of those allegations and on the contrary, there’s no evidence at all that any child or that the parents of any child wanted their children in the free exercise of their religion, wanted their children to say this morning prayer at school, is there?

Leonard J. Kerpelman:

Well, Your Honor, I think it may be easily assumed that a majority of parents would have — would like to have their children say this prayer in the school.

Potter Stewart:

Well, that if we strike this provision down, we’re interfering with the free exercise of their religion, aren’t we?

Leonard J. Kerpelman:

Well, Your Honor, I think that the — well, for example, the police power can yield to the necessity that the public be protected from violence.

That is — freedom of speech would yield to the police power.

Freedom of assembly would yield to the right of the public to have its property protected against riots.

But, this is a new concept to me that a person’s freedom of — that a person’s free exercise of religion or his right to be unburdened or free of an establishment of religion must yield to the free exercise of religion of other parties when this other parties are in the public school, they’re saying to the petitioner, “give us your support, give us your taxes, give us your faith and confidence and trust in the school,” which incidentally the petitioners do give wholeheartedly, and they say that the taxing part of what they give is but a mere incidental to the other things that they give which is a belief in the importance in our society of secular public schools.

They give all these.

The majority says that, “in return for this, we wish to run a religious exercise which caused you — causes you these substantial detriments.”

I don’t think that the free exercise of the majority — the right to the free exercise can work that way because, in exercising its right, it is establishing a religion in the public school.

By establishing the religion in a public school, they take away of course the right to the petitioners to be free of an establishment.I don’t believe —

Potter Stewart:

Your entirely free under these regulations to your client to just walk away from the ceremony.

Leonard J. Kerpelman:

Well, Your Honor, now that I believe is more an illusory out than a real one.

Potter Stewart:

Well, it says, “any child shall be excused from participating in the opening exercises or from attending the opening exercises.”

Leonard J. Kerpelman:

Yes, Your Honor.

Potter Stewart:

“On the request of his parent or guardian.”

Leonard J. Kerpelman:

Right.

Potter Stewart:

You’re free to walk away.

Leonard J. Kerpelman:

Yes, Your Honor.

Potter Stewart:

Not participate in any way.

Leonard J. Kerpelman:

Yes, Your Honor.

And then, because of a matter which is not in a secular sphere, which you can’t discuss in class in a rational matter because — manner because religion cannot be in a last analysis rationale but, because of a matter which is in the spiritual sphere, this child who chooses to walk away, and I think it can be admitted, he would have no answer to the people who would think that this was a peculiar or an ungentlemanly or perhaps a bad thing to do.

He would have no answer because his answers are all within the heart of the people that make these allegations.

He has no answer.

This is not a secular matter.

When he walks away, he then becomes subject to whatever sanctions school boys may impose.

Leonard J. Kerpelman:

And, I might say, to whatever sanction school teachers may impose and I might say this, Mr. Justice —

Potter Stewart:

There’s no one — of course, no evidence because (Voice Overlap) —

Leonard J. Kerpelman:

No evidence sir.

Potter Stewart:

All we have is the complaint of the petitioner.

Leonard J. Kerpelman:

But, where we put the proof, we would prove that these acts of coercion were very substantial, that this boy was spat upon, insulted, assaulted.

The criminal docket of the Northeastern Police Station in Baltimore City will show that certain persons were found guilty of assaulting him when this case gained notoriety and he’s an infant.

This boy is now in his junior year.

Potter Stewart:

Are you sure?

I was assaulted when I was an infant at school many times, weren’t you?

I mean, —

Leonard J. Kerpelman:

Yes, Your Honor.

Potter Stewart:

— may be no connection between (Voice Overlap) —

Leonard J. Kerpelman:

Yes, Your Honor, but if it’s on a rational matter, “did you steal Johnny’s marbles?”

Or “Did you win the game or did he win the game?”

It’s something which the Constitution I don’t think has set out any standards.

Potter Stewart:

The reason I asked the — the first question I asked you sir was this, that it seems to me that there are two provisions affecting and relating to religion in the First Amendment: the Establishment Clause and the Free Exercise Clause, and some of us tend to lump this all as one doctrine.

The fact is that these two separate and distinct clauses sometimes run into conflict with each other.

They’re not one.

They’re two different things and in some areas, they conflict.

And if, as you say, the evidence on the — remanding of this case or if this case should ever be tried, if the evidence should show that the mass majority of the children in the Baltimore school and their parents want to, in their free exercise of their religious beliefs, want to open their school day with prayer, then to prevent them from doing that would be to interfere with the free exercise of their religion.

Isn’t that correct?

That —

Leonard J. Kerpelman:

But, under the Establishment Clause —

Potter Stewart:

— that’s very literally.

Leonard J. Kerpelman:

Well, Your Honor, I can’t quite follow that, and I say that respectfully, because, under the Establishment Clause, they have no right to establish a religion.

Potter Stewart:

Precisely but, under the Free Exercise Clause, they do have a constitutional right to pray when and where they want to or not to pray if they don’t want to.

Leonard J. Kerpelman:

Yes, Your Honor, they have.

Potter Stewart:

That’s —

Hugo L. Black:

Do I take that’s correct?

Potter Stewart:

— precisely my point.

Hugo L. Black:

Is that correct?

Leonard J. Kerpelman:

Well, it seems to me —

Hugo L. Black:

Would somebody have a right to come in here this minute in this public institution and interrupt our proceeding, let’s say, they wanted to pray, and would that be to deprive them of their free exercise of religion to say that they could pray only outside or somewhere else?

Leonard J. Kerpelman:

Thank you, Mr. Justice.

As I was thinking in terms of a silent prayer but, certainly, Mr. Justice Black, if someone came in here and interrupted the proceedings of this Court that would certainly not be within their constitutional rights.

Hugo L. Black:

I don’t think the Amendment says that a person got a right to go anywhere in the world he wants to at any time and then intrude on other places where they have set apart for something and dedicated to something or to express views of any kind.

Leonard J. Kerpelman:

Yes, Your Honor.

Hugo L. Black:

Openness or to interrupt the people.

Leonard J. Kerpelman:

Yes, Your Honor.

Hugo L. Black:

Like public expense where the public’s money that’s against it.

Potter Stewart:

There’s no question here of any disturbance of the peace or disorderly conduct, we’re not in that kind of an area in this case at all, are we?

Leonard J. Kerpelman:

No, except, analogously, I feel that a person comes in and makes a speech which constitutes disorderly conduct.

Although he has a right to free speech, he has a responsibility to conduct himself in an orderly manner.

Potter Stewart:

And if the sign says, “Keep off the grass”, he is — he can be prohibited from walking on the grass —

Leonard J. Kerpelman:

Yes.

Potter Stewart:

— even if he wants to walk on it to make a speech.

But, we’re not in that — this isn’t that kind of a case at all, is it?

Leonard J. Kerpelman:

Your Honor, I feel that, under Your Honor’s hypothesis, it — in a way is.

Here, the majority in a class wishes to establish a religion.

Question, can they res — establish a religion or does that reach one of the constitutional rights of the minority?

After all, the —

Potter Stewart:

Now, these are constitutional rights that apply to all of us, whether we’re in the minority or the majority, whether we’re 1 or whether we’re a 1,000.

And, I’m only suggesting that the Establishment Clause and the Free Exercise Clause often run — collide with each other.

They run head-on into each other and it’s fallacious to consider them as one of the same thing.

They’re two separate, distinct provisions of the Constitution and they often, as in this very case, if you’re right that a vast majority of the students and of their parents affirmatively want to, in the exercise of their religious beliefs, want to open their school day with prayer, then to prevent them from doing it in the name of the Establishment Clause is to interfere with the free exercise of their religion.

Now, I’m not suggesting the answer.

I’m simply —

Leonard J. Kerpelman:

Yes.

Potter Stewart:

— suggesting that it’s a fallacy to lump all this together and say it all just stands for separation of church and state.

If the Constitution doesn’t say so, it has two particular specific provisions.

Leonard J. Kerpelman:

Well, Your Honor is clearly more the legal scholar than I am.

Yet, it seems to me that the prohibition — prohibitions contained in the First Amendment are two prohibitions.

They’re prohibition against interfering with someone’s free exercise, they’re prohibition against the establishment, and these prohibitions operate to the benefit of the minority.

They cannot be used as a sword by the majority.

And, I see Your Honor disagrees with it.

Potter Stewart:

Well —

Leonard J. Kerpelman:

But that is our conception of the case.

Potter Stewart:

They’re constitutional provisions.

They’re a sword, if you want to call them a sword, they’re a cloak if you want to call them that, but they’re no more available — no more freely available to the majority than to the minority, to one and to a million.

It’s generally minorities who invoke these rights because, usually, majorities don’t have to.

Leonard J. Kerpelman:

Correct.

Potter Stewart:

But —

Leonard J. Kerpelman:

The majority has its legislature and the majority has —

Potter Stewart:

The provisions are equally applicable to all of us.

Leonard J. Kerpelman:

Yes, Your Honor.

However, it is —

Arthur J. Goldberg:

It seems that the —

Leonard J. Kerpelman:

Yes, Your Honor?

Arthur J. Goldberg:

(Inaudible)

Leonard J. Kerpelman:

Clearly.

Arthur J. Goldberg:

(Inaudible)

Leonard J. Kerpelman:

Yes, Your Honor.

It seems to me, also, that the compact of the Constitution says that if the minority has a right, we don’t have noses and then if there are more persons opposed to their having that right than not having it, that we take the right away from them.

It seems to me that that must be a guiding constitutional condition.

Otherwise, we have no amendments to the Constitution left.

The — as I have said, the petitioners are in the position where they wish to give their support to the schools.

They want in return, that the school should treat its secular matters only as they feel that the school is called upon to do.

They don’t want — wish to have any dogmas in spiritual matters thrust upon the children who attend the schools and no matter how retiring or mild or neutrally worded any of these things may be, under the condition of religions in our pluralistic American society, these prayers are always secular — sectarian, I’m sorry, as was the prayer in Engel.

This, of course, is the Lord’s Prayer.

It seems to me it’s a stronger situation than Engel.

Leonard J. Kerpelman:

The Lord’s Prayer is taken directly from the New Testament and it’s not a matter which the religiousness of can be very much disputed.

There’s no question that it’s a sectarian religious ceremony, it seems to me.

The authorities that I have been able to find in the theological field seem to be agreed that the Lord’s Prayer is a Christian prayer and even within the Christian denominations, there is difference as to which version shall be used.

The Douay omits the “Thine is the kingdom and the power and the glory forever and ever, Amen”, as I understand.

The matter is something which we run into head-on every time that we try to have a religious ceremony conducted by a government or by a government agency.

We give sanction or favor, as was prohibited in Barnett, as was prohibited in many other cases, in Torcaso, in McGowan.

And give sanction or favor to one religion as opposed to other religions or we give sanction or favor to religion as opposed to non-religion.

This case, of course, makes everyone uncomfortable because a large majority of the country loves this prayer.

It’s a beautiful prayer.

Certainly, the large majority of the country loves the literature of the Bible and it’s certainly one of man’s outstanding works and therefore, it gives us I think a great deal of discomfort to have to face the fact that perhaps, this ceremony which most people adore is an unconstitutional ceremony because it’s a religious ceremony and it is not a secular study.

There is no reason, and I’ve seen it lamented many times, it has been lamented in the brief of the respondent in the Schempp case which follows that — in a footnote, I think it was Footnote 9, referred to in footnote — to the respondents’ brief — to the Attorney Generals’ amicus brief, that study of the Bible, study of religion and religiousness is out of the schools, that things are too neutral.

Baltimore Sage who is well-known, General W. Johnson, I recall, writing a letter to the newspaper about a year ago lamenting the same fact when this issue first came to the Court that the trouble with biblical study in the school is that there are too many sects who are contesting and as a result, he lamented the fact that every time study of the Bible as literature or as history or as historic or as cultural history is tried in the schools, that these various sects object to it.

That is not the fault of the petitioners.

It seems to me that perhaps, the resolution of this matter, if this practice is unconstitutional, is for the sects to not be so selfish, self-centered on their own dogmas that they would raise these objections to the study of the Bible in school, for the use of the Bible in English class, to the study of religions.

We have no objections.

There can be no constitutional objection when it is carried on as a secular study.

I would like to get to a point which the —

Potter Stewart:

The complaint there rely entirely on the Establishment Clause?

Leonard J. Kerpelman:

No.

Its — it relies on the Establishment Clause and the Free Exercise Clause and Your Honor is about to ask, I assume, how can an atheist freely exercise his religion.

Potter Stewart:

No, I understand that you can’t —

Leonard J. Kerpelman:

Jumping —

Potter Stewart:

I know about the Torcaso case and I join you.

You’re entirely free to disbelieve in God.

Leonard J. Kerpelman:

Yes, Your Honor.

I guess I’m getting a little gun shy with this case.

People have been attacking me for a long time.

Potter Stewart:

(Inaudible) — you have a constitutional protection to disbelieve in God, don’t you?

Leonard J. Kerpelman:

Yes sir.

The petitioners have put forth an argument, which I would like to treat of and that is that they have said that this ceremony should be allowable because it is not a very religious ceremony and they have said that it actually transcends religion.

Leonard J. Kerpelman:

They used the language saying that the religiousness of a ceremony is a matter of degree and I suppose the implication is that nobody would argue, for example, that to conduct the protestant communion service in the school would be unconstitutional.

Nobody would argue that to conduct a catholic mass in the school would be unconstitutional, but they have put forth the argument that this ceremony is only somewhat religious and that it has only a shade of religiousness.

Well, Your Honor, I think that that argument Your Honors must feel, the Constitution recognizes no somewhat abuse of due process, no somewhat illegal search, recognizes no somewhat restrictive restriction on free speech or the press, either a matter is a restriction of a constitutional guarantee or it is not.

Now, what surprised me as I read further in the respondents’ brief was that, after arguing that this matter of religiousness can take on any shade in a spectrum and be slightly religious or extremely religious, they then go on to argue that the dissenter is right to be free from coercion does not exist.

That he has an absolute right to endure the coercion.

They said on pages 32 and 33 of their brief, “The dissenter cannot ask that the source of disapproval or the alleged factors of compulsion be eliminated so that he will be spared the burden of any disapproval.

It makes no difference that the sensibilities and feelings of children are involved.”

Still quoting, Your Honors, “This is, by choice, the dissenter’s problem.

Adult or child, the conviction of the dissenter must of necessity be sufficiently strong to permit him to effectuate his dissent and to bare the disapproval of others.”

And, I say, Your Honors, that I am shocked by this argument.

Here, they have admitted that William Murray, junior high school boy when this case was filed, still an infant at the age of about 15, a junior in high school has been regarded with aversion.

He has been subjected to insult.

His morality has been brought into question.

His good citizenship has been brought into question and although the respondents argue that the religiousness of the ceremony is a matter of degree, that the necessity for the infant to endure this compulsion is an absolute.

Arthur J. Goldberg:

(Inaudible)

Leonard J. Kerpelman:

Your Honor, it does —

Arthur J. Goldberg:

(Inaudible)

Leonard J. Kerpelman:

— seem to me that that would impinge on the constitutional prohibition against an establishment.

There are some question as to whether this is a recognition of religion or all religions but, it seems to me, it’s quite possible that that would be a constitutional procedure, providing it’s not something imposed from above by the school authorities entirely but something which perhaps wells up from within the classrooms.

I don’t know.

Of course, unfortunately, I feel that I cannot completely answer the question that is not in this case, but it seems to me that such practice would probably be a constitutional.

Hugo L. Black:

I suppose that there’s no right to weigh that the law could enforce prohibition against a man thinking and praying silently to himself, is there?

Leonard J. Kerpelman:

No question about it, Your Honor.

Thoughts come to men unbidden.

Prayers come to men unbidden.

A man sends them onto his maker frequently as a prayer when they come to him.

No one certainly can — prayer itself cannot be unconstitutional.

What we ask in this case is that the school can find itself to secular functions that it leave matters of spiritual training, spiritual faith, matters of religion to the home, to the schools, to the religious institutions which have always, by American tradition, had great honor in this country and which always, by the American tradition, all of us have had respect for the power of it.

And, that is not what we object.

Potter Stewart:

Are you familiar with the Northwest ordinance?

Leonard J. Kerpelman:

I’m afraid not.

Potter Stewart:

Because I think you’re — there’s no point in getting an argument on history, but I think the religion in the schools have historically been fairly closely connected historically.

Leonard J. Kerpelman:

Oh, yes, Your Honor.

Your Honor is referring to the fact that these schools originally were set up as adjuncts of — usually of church institutions.

When they were cut loose from the church institutions, they still had a great deal of sectarianism connected with them.

That was better than new schools, I would say, Your Honor, but certainly not better, in present day society, the schools without a sectarian or a religious sector orientation.

No, I say it’s not better than a school without sectarian orientation.

I would rather see a school set up with secular orientation.

Leave the sectarian matters of faith to the home and to the priesthood and the rabbinate and the protestant clergy.

Arthur J. Goldberg:

Well, there’s a constitutional right to have a parochial schools (Inaudible)

Leonard J. Kerpelman:

Yes, Your Honor.

Yes sir.

Arthur J. Goldberg:

You’re not arguing against that constitutional right.

Leonard J. Kerpelman:

No, Your Honor.

But in my opinion, I think that the preservation of secular schools, teaching secular subjects only is very important to our society.

I personally feel that when doctrinal subjects pervade the teaching of secular subjects that it’s bad for the doctrine and it’s bad for the secular subjects, but that is a matter of opinion.

Arthur J. Goldberg:

You’re expressing a personal opinion.

Leonard J. Kerpelman:

An entirely personal —

Arthur J. Goldberg:

Constitutionally irrelevant.

Leonard J. Kerpelman:

Yes, Your Honor, absolutely.

There certainly is no constitutional prohibition against parochial schools.

Potter Stewart:

What if 99% of the children with the consent for participation of their parents, what if there were no law, no Baltimore law or ordinance whatsoever, but in the Baltimore school, 99% of the students, under their student leadership or voluntarily welled up within the class have decided to get together and say the Lord’s Prayer every morning before they begin, got to school two minutes early or three minutes early and said the Lord’s Prayer there in the classroom every morning because they wanted to?

Leonard J. Kerpelman:

As hypothesized by Your Honor, I think it would be perfectly constitutional.

Exactly as this Court having certain autonomous powers, certain rights to decide what its procedure will be, what it will do when this authority does not extend to compelling someone who attends —

Potter Stewart:

Well —

Leonard J. Kerpelman:

This Court has the authority to say a prayer in the morning, to have the fryer say “God save —

Potter Stewart:

I couldn’t agree with you more if there were any compulsion — is there any compulsion because that would inters — interfere with the free exercise of the religion of your client or the non-religion, which is the same thing.

But this pro — this statute contains a specific explicit provision that you can walk away from this.

Leonard J. Kerpelman:

Well, Your Honor, I think that Your Honor’s hypothesis where the ceremony comes from the class would be constitutional.

If the ceremony is imposed by the school authorities which thereby give it their sanction, their approval, their — the only advantage is flowing from approval by the authority, then it would be unconstitutional.

Leonard J. Kerpelman:

I think that that would be the distinction.

Potter Stewart:

Then shouldn’t this — might it not be wise to remand this case to take evidence as to see whether or not there was any compulsion on your client?

All we have is bear allegations now of your pleading admitted by the demurrer —

Leonard J. Kerpelman:

Well —

Potter Stewart:

— and to take evidence as to who wanted to say these prayers in the morning and with whose — with the free exercise of whose religion striking down this ordinance would interfere.

Leonard J. Kerpelman:

Well, it’s been admitted by demurrer that the allegations are true.

Potter Stewart:

I understand that.

Leonard J. Kerpelman:

And if the case were remanded, we’d come back up here with the same set of facts, if Your Honor please, because the facts are as alleged.

The facts are very much as alleged.

Potter Stewart:

Well, there’s no evidence at all that anybody wants to say this prayer now (Inaudible).

Leonard J. Kerpelman:

Well, I would ask the Court to decide the case on the basis that we’ve assumed that those people would say —

Potter Stewart:

You’re going to get around a demurrer.

On your —

Leonard J. Kerpelman:

Yes, sir.

Potter Stewart:

— on your pleading on a demurrer and they (Inaudible)

Leonard J. Kerpelman:

Yes, Your Honor, but I think it’s quite clear, perhaps even clear enough for the Court to take judicial notice, that most people would like to have this prayer.

Potter Stewart:

In the exercise of their religious beliefs.

Leonard J. Kerpelman:

Well, they would like to have this prayer.

Hugo L. Black:

They would like the —

Leonard J. Kerpelman:

This is one of the most —

Hugo L. Black:

They would like to have the state use its tools paid for by taxpayer’s money to carry out their religion.

Leonard J. Kerpelman:

Their religion, yes, Your Honor, as long as they are the majority.

If they were the minority, they would not feel that way, I think.

Potter Stewart:

Well, what if the minority wanted to had, say a prayer in school?

Leonard J. Kerpelman:

They have no right to do so.

They have no right to have a school —

Potter Stewart:

They have a constitutional right to do so, don’t they, so long as they’re not interfering with anybody else?

Leonard J. Kerpelman:

Oh, they have a right to say a prayer as long as they’re not interfering with the orderly conduct in the school’s business.

They have no right to have the school authorities to make everyone say this prayer.

Potter Stewart:

But each one of us, whether they’re– whether we’re 1 or whether we’re 10 million, have a right to the free exercise of our religion.

Potter Stewart:

Isn’t that correct under the Constitution.

Leonard J. Kerpelman:

Providing it does not impinge on other person’s —

Potter Stewart:

It doesn’t help to talk about minorities or majorities in this case.

Leonard J. Kerpelman:

Providing it does not impinge on other person’s constitutional freedoms, Your Honor.

Hugo L. Black:

Well, if that’s right, as applied to this case, why only have 5 or 10 minutes?

If the majority all want to have it for religious purposes, why not use the whole day?If they vote — the majority vote to do it, they could use it the whole day, couldn’t they?

Leonard J. Kerpelman:

Well, of course, the majority is there —

Hugo L. Black:

If it exer — if it would interfere with the free exercise of their religion.

Leonard J. Kerpelman:

Yes, of course, Your Honor.

The pupils are there to learn.

They’re there to study secular subjects.

If they’re going to devote the whole day to religious ceremony, they apparently, obviously, had no right to do that just by a majority vote.

I think, likewise that —

Earl Warren:

We’ll recess now.

Leonard J. Kerpelman:

Yes, Mr. Justice.