ABINGTON SCHOOL DISTRICT v. SCHEMPP

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Argument of Philip H. Ward Iii

Chief Justice Earl Warren: Number 142, School District of Abington Township, Pennsylvania et al., Appellants, versus Edward Lewis Schempp et al.

Mr. Ward.

Mr. Philip H. Ward Iii: May it please the Court.

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

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

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

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

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

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

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

Justice John M. Harlan: Do this come up on demurrer or --

Mr. Philip H. Ward Iii: No, sir.

There is a record in this case.

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

We think we have a novel factual situation here.

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

Justice Byron R. White: This is a -- it's noncompulsory, was there any place in the school with the -- I can't get to the (Inaudible)

Mr. Philip H. Ward Iii: Yes, Mr. Justice White.

I just --

Justice Byron R. White: Were there any places at school you'd go and not (Inaudible)

Mr. Philip H. Ward Iii: Actually, there's nothing in the record because nobody asked to be excused.

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

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

Justice Byron R. White: So it never -- was there any need to make (Inaudible)

Mr. Philip H. Ward Iii: That question never arose.

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

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

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

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

And also practiced -- the practice fostered contradictory beliefs.

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

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

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

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

Justice John M. Harlan: How old are these youngsters?

Mr. Philip H. Ward Iii: They're -- the two -- Roger -- Ellory, who was the oldest, Mr. Justice Harlan has graduated.

He's about 21.

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

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

Justice Arthur J. Goldberg: These children are Unitarian?

Mr. Philip H. Ward Iii: Sir?

Justice Arthur J. Goldberg: These children are Unitarian?

Mr. Philip H. Ward Iii: They are Unitarian.

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

It's an old document.

It comes from certain basic original sources.

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

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

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

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

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

The main point, the main thrust --

Justice John M. Harlan: I don't get -- I don't get the last part.

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

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

Justice John M. Harlan: I don't get it but I understand it.

Mr. Philip H. Ward Iii: No.

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

Justice John M. Harlan: Well, alright.

I hear you.

Mr. Philip H. Ward Iii: Alright.

That's what they call it.

Justice John M. Harlan: One thing I -- I gather to that is that they need a teacher or have more witnesses to testify.

Mr. Philip H. Ward Iii: Well that's -- and then in fact there is no teacher complaining here which I think is the short answer to the question.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip H. Ward Iii: Thank you, Mr. Justice Goldberg.

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

Justice John M. Harlan: Well, I thought there's no point in relying to this but I didn't know if the statute for -- said that the teacher not only have to read but be enthusiastic about it.

Mr. Philip H. Ward Iii: Well, they required enthusiasm in Abington.

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Potter Stewart: So, the fact is he did not ask to have his children excused?

Mr. Philip H. Ward Iii: No, he did not.

He testified --

Justice Potter Stewart: Then you don't know, therefore, what effect, if any, there would have been --

Mr. Philip H. Ward Iii: No.

Justice Potter Stewart: Had he done so?

Mr. Philip H. Ward Iii: No, all we know is that he believes that had they been excused --

Justice Potter Stewart: Well, that's a subject (Voice Overlap).

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

Mr. Philip H. Ward Iii: That is all we have on it.

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

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

He had never talked to the teacher about it.

He never talked about the excused provision.

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

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

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

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

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

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

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

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

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

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

Justice John M. Harlan: Did that junction go into effect?

Mr. Philip H. Ward Iii: No, we obtained to stay until the action of this Court.

What is this Bible reading practice?

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

Mr. Philip H. Ward Iii: The -- in the second decision --

Justice Potter Stewart: Which is before us now.

Mr. Philip H. Ward Iii: Before us now, the Court said it need not pass on the Free Exer -- the contingencies made on the free exercise because we find that this is a violation of the Establishment Clause.

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

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

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

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

At 8:15, the morning exercise starts.

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

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

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

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

Justice Arthur J. Goldberg: The Almanac comes first?

Mr. Philip H. Ward Iii: The Almanac comes first.

It's an attention gatherer.

This has followed --

Justice Potter Stewart: Almost later I guess.

Mr. Philip H. Ward Iii: Sir?

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

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

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

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

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

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

It purchases one Bible which is the King James Version.

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

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

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

Justice Potter Stewart: And this is -- these are broadcast or typed from one place in the school to every classroom?

Mr. Philip H. Ward Iii: Yes, Mr. Justice Stewart there is a room at which the radio and TV class meets.

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

Justice Potter Stewart: We're talking about one school building here?

Mr. Philip H. Ward Iii: It's the only one that is a subject to this suit sir, the Abington High School and that is where both of these children are.

Roger and Donna are seniors in that school.

This is the way it is carried out --

Justice Potter Stewart: In this school?

Mr. Philip H. Ward Iii: In this school.

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

Mr. Philip H. Ward Iii: The only thing that -- there is no evidence to show what would happen, except this Mr. Schempp testified.

Justice Potter Stewart: That's his subjective prophecy.

Mr. Philip H. Ward Iii: Yes.

Justice Potter Stewart: Without that there is nothing.

Mr. Philip H. Ward Iii: But he testified that a child might be made to stand outside the classroom but that is as you say is subjective testimony.

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

Justice Potter Stewart: So we, we don't know -- there's no evidence at all, one way or the other about whether or not there would be any compulsions or coercive forces psychological or otherwise?

Mr. Philip H. Ward Iii: Because no one asked to be excused.

What are the Schempps really complaining about?

It's not the Bible itself because --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip H. Ward Iii: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Philip H. Ward Iii: No, sir.

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

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

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

The Schempps say we are not doing that.

How could we be teaching moral?

Chief Justice Earl Warren: We'll recess now, Mr. Ward.

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Argument of Leonard J. Kerpelman

Chief Justice Earl Warren: Number 119, William J. Murray III et al., versus John Curlett et al.

Mr. Kerpelman.

Mr. 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.

Justice 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?

Mr. 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.

Justice Potter Stewart: But here, you have your Fourteenth Amendment case, don't you?

Mr. 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.

They were discussed in Torcaso.

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

Justice William J. Brennan: Mr. Kerpelman.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice William J. Brennan: Is the version of the Lord's Prayer actually in the record?

Mr. 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.

Justice William J. Brennan: I noticed that in the regular -- the section, Douay version may be used by those pupils who prefer it.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice William J. Brennan: Is there anything in the record that shows how they --

Mr. Leonard J. Kerpelman: How they determine that?

Justice William J. Brennan: Yes.

Mr. 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.

Justice Arthur J. Goldberg: Mr. Kerpelman, (Inaudible)

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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.

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

Justice John M. Harlan: (Inaudible)

Mr. 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.

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.

Justice Potter Stewart: Is this a -- the case is here on a demurrer, on a --

Mr. Leonard J. Kerpelman: Yes.

Yes, Your Honor.

Justice 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?

Mr. 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.

Justice Potter Stewart: Well, that if we strike this provision down, we're interfering with the free exercise of their religion, aren't we?

Mr. 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 --

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

Mr. Leonard J. Kerpelman: Well, Your Honor, now that I believe is more an illusory out than a real one.

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

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Potter Stewart: “On the request of his parent or guardian.”

Mr. Leonard J. Kerpelman: Right.

Justice Potter Stewart: You're free to walk away.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Potter Stewart: Not participate in any way.

Mr. 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.

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

Justice Potter Stewart: There's no one -- of course, no evidence because (Voice Overlap) --

Mr. Leonard J. Kerpelman: No evidence sir.

Justice Potter Stewart: All we have is the complaint of the petitioner.

Mr. 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.

Justice Potter Stewart: Are you sure?

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

I mean, --

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Potter Stewart: -- may be no connection between (Voice Overlap) --

Mr. 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.

Justice 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 --

Mr. Leonard J. Kerpelman: But, under the Establishment Clause --

Justice Potter Stewart: -- that's very literally.

Mr. 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.

Justice 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.

Mr. Leonard J. Kerpelman: Yes, Your Honor, they have.

Justice Potter Stewart: That's --

Justice Hugo L. Black: Do I take that's correct?

Justice Potter Stewart: -- precisely my point.

Justice Hugo L. Black: Is that correct?

Mr. Leonard J. Kerpelman: Well, it seems to me --

Justice 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?

Mr. 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.

Justice 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.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Hugo L. Black: Openness or to interrupt the people.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Hugo L. Black: Like public expense where the public's money that's against it.

Justice 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?

Mr. 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.

Justice Potter Stewart: And if the sign says, “Keep off the grass”, he is -- he can be prohibited from walking on the grass --

Mr. Leonard J. Kerpelman: Yes.

Justice 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?

Mr. 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 --

Justice 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 --

Mr. Leonard J. Kerpelman: Yes.

Justice 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.

Mr. 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.

Justice Potter Stewart: Well --

Mr. Leonard J. Kerpelman: But that is our conception of the case.

Justice 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.

Mr. Leonard J. Kerpelman: Correct.

Justice Potter Stewart: But --

Mr. Leonard J. Kerpelman: The majority has its legislature and the majority has --

Justice Potter Stewart: The provisions are equally applicable to all of us.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

However, it is --

Justice Arthur J. Goldberg: It seems that the --

Mr. Leonard J. Kerpelman: Yes, Your Honor?

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard J. Kerpelman: Clearly.

Clearly.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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 --

Justice Potter Stewart: The complaint there rely entirely on the Establishment Clause?

Mr. 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.

Justice Potter Stewart: No, I understand that you can't --

Mr. Leonard J. Kerpelman: Jumping --

Justice Potter Stewart: I know about the Torcaso case and I join you.

You're entirely free to disbelieve in God.

Mr. 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.

Justice Potter Stewart: (Inaudible) -- you have a constitutional protection to disbelieve in God, don't you?

Mr. 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.

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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard J. Kerpelman: Your Honor, it does --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice 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?

Mr. 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.

Justice Potter Stewart: Are you familiar with the Northwest ordinance?

Mr. Leonard J. Kerpelman: I'm afraid not.

Justice 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.

Mr. 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.

Justice William J. Brennan: Well, there's a constitutional right to have a parochial schools (Inaudible)

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Yes sir.

Justice William J. Brennan: You're not arguing against that constitutional right.

Mr. 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.

Justice William J. Brennan: You're expressing a personal opinion.

Mr. Leonard J. Kerpelman: An entirely personal --

Justice William J. Brennan: Constitutionally irrelevant.

Mr. Leonard J. Kerpelman: Yes, Your Honor, absolutely.

There certainly is no constitutional prohibition against parochial schools.

Justice 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?

Mr. 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 --

Justice Potter Stewart: Well --

Mr. Leonard J. Kerpelman: This Court has the authority to say a prayer in the morning, to have the fryer say “God save --

Justice 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.

Mr. 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.

I think that that would be the distinction.

Justice 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 --

Mr. Leonard J. Kerpelman: Well --

Justice 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.

Mr. Leonard J. Kerpelman: Well, it's been admitted by demurrer that the allegations are true.

Justice Potter Stewart: I understand that.

Mr. 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.

Justice Potter Stewart: Well, there's no evidence at all that anybody wants to say this prayer now (Inaudible).

Mr. 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 --

Justice Potter Stewart: You're going to get around a demurrer.

On your --

Mr. Leonard J. Kerpelman: Yes, sir.

Justice Potter Stewart: -- on your pleading on a demurrer and they (Inaudible)

Mr. 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.

Justice Potter Stewart: In the exercise of their religious beliefs.

Mr. Leonard J. Kerpelman: Well, they would like to have this prayer.

Justice Hugo L. Black: They would like the --

Mr. Leonard J. Kerpelman: This is one of the most --

Justice Hugo L. Black: They would like to have the state use its tools paid for by taxpayer's money to carry out their religion.

Mr. 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.

Justice Potter Stewart: Well, what if the minority wanted to had, say a prayer in school?

Mr. Leonard J. Kerpelman: They have no right to do so.

They have no right to have a school --

Justice Potter Stewart: They have a constitutional right to do so, don't they, so long as they're not interfering with anybody else?

Mr. 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.

Justice 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.

Isn't that correct under the Constitution.

Mr. Leonard J. Kerpelman: Providing it does not impinge on other person's --

Justice Potter Stewart: It doesn't help to talk about minorities or majorities in this case.

Mr. Leonard J. Kerpelman: Providing it does not impinge on other person's constitutional freedoms, Your Honor.

Justice 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?

Mr. Leonard J. Kerpelman: Well, of course, the majority is there --

Justice Hugo L. Black: If it exer -- if it would interfere with the free exercise of their religion.

Mr. 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 --

Chief Justice Earl Warren: We'll recess now.

Mr. Leonard J. Kerpelman: Yes, Mr. Justice.

Print this transcript Transcript: 

Argument of Phillip H. Ward

Chief Justice 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.

Mr. 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.

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.

Justice William J. Brennan: But Mr. Ward --

Mr. Phillip H. Ward: But in any event --

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

Mr. Phillip H. Ward: That's quite correct, sir.

Justice William J. Brennan: You don't excuse them for (Inaudible)?

Mr. Phillip H. Ward: No, we excuse them from the flag salute, sir --

Justice William J. Brennan: But why --

Mr. Phillip H. Ward: -- and that is teaching patriotism.

Justice William J. Brennan: 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?

Mr. 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 --

Justice William J. Brennan: 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) --

Mr. 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 --

Justice William J. Brennan: 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?

Mr. 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 --

Justice William J. Brennan: Well, I would say, I would suppose it was a -- so -- it's a very good thing, perhaps.

Mr. Phillip H. Ward: Certainly.

Justice William J. Brennan: Perhaps even in some respects of rather more important than teaching requisites.

Mr. Phillip H. Ward: I think it might well be.

Justice William J. Brennan: 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.

The whole school can excuse itself.

Mr. Phillip H. Ward: It could.

Justice Byron R. White: Well, don't you have other electives?

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Phillip H. Ward: No, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Phillip H. Ward: No, the Bible as we all agree is a monumental doctrine.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Phillip H. Ward: I am taking the position --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: That's a very careful argument, I understand it.

The Bible (Inaudible)

Mr. Phillip H. Ward: It is a great religious document and it has other values.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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.

Chief Justice 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 --

Mr. Phillip H. Ward: No, I'm not --

Chief Justice Earl Warren: From -- from -- from that training which you were giving them.

Mr. Phillip H. Ward: No, I'm saying that --

Chief Justice Earl Warren: Then what -- isn't that the effect of it?

Mr. 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 --

Chief Justice Earl Warren: The fourth -- the fourth category of course would be parents who are amoral.

Mr. Phillip H. Ward: Certainly.

Chief Justice 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.

Mr. 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.

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 different.

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.

Chief Justice Earl Warren: You mean they're separate, but equal?

Mr. 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 --

Chief Justice Earl Warren: Mr. Ward, are you asking us to overrule Vitale?

Mr. Phillip H. Ward: No, sir.

This is not the Vitale.

Chief Justice Earl Warren: Why isn't it Vitale?

Mr. 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.

Chief Justice Earl Warren: Do you mean there is no religious meaning to the Lord's Prayer?

Mr. 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 --

Chief Justice Earl Warren: It's permitted under the same -- permitted under the same law?

Mr. Phillip H. Ward: No, sir.

Chief Justice Earl Warren: And it's done, isn't it?

Mr. 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.

Chief Justice Earl Warren: Suppose they read them, that part of the Bible, it is the Lord's Prayer.

Mr. 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.”

Justice William J. Brennan: I know but there's no First Amendment in the Constitution of Iraq.

Mr. 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.

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.”

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible) that there are some other versions of the Bible, do they call it the Holy Bible?

Mr. Phillip H. Ward: Sir, the -- all the Bibles I have seen are called the Holy Bible, the Jewish Holy Scriptures --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Phillip H. Ward: But the Holy Bible is the -- the generic for this particular book.

Justice 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)

Mr. Phillip H. Ward: It's not so much whether they speak or whether they don't speak.

Justice 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?

Mr. Phillip H. Ward: I don't think that is, that maybe bad on --

Justice Byron R. White: Would you make the same argument or not?

Mr. Phillip H. Ward: Mr. Justice White, I didn't quite understand if instead of reading the Bible all the children have --

Justice Byron R. White: They ask you, do these students repeat after the reader what the reader read?

Mr. 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.

Justice Byron R. White: Whether it's religious or not?

Mr. 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 --

Justice Byron R. White: You make them a vow or belief?

Mr. 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.

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.

Chief Justice 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?

Mr. Phillip H. Ward: I think it would, sir.

Chief Justice Earl Warren: You think it would?

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

Mr. Phillip H. Ward: I would think it would, sir.

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

Mr. 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.

Justice Potter Stewart: Well, how about Barnette, the Barnette case?

Mr. Phillip H. Ward: No, but Barnette case -- I don't think went on the religious part.

Justice 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.

Mr. 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 --

Justice Potter Stewart: Well, if there were evidence to that then there wouldn't be an effect to this excusable provision.

Mr. Phillip H. Ward: Well, this is a hypothetical --

Justice 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 --

Mr. Phillip H. Ward: May well be constitutional?

Justice Potter Stewart: That it might well be constitutional?

Mr. Phillip H. Ward: And I get --

Justice 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.

Mr. Phillip H. Ward: Oh no.

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?

Justice Hugo L. Black: That's right.

Mr. Phillip H. Ward: Oh no.

I certainly think children --

Justice Hugo L. Black: You cannot -- can you assume that children are of that way?

Can you assume that there are certain differences?

Mr. Phillip H. Ward: Oh certainly.

Justice 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?

Mr. 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.

Justice 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?

Mr. 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 --

Justice Hugo L. Black: Do you think we adopted -- do you think we adopted it because of its morality or because of our religious faith?

Mr. 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 --

Justice 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?

Mr. Phillip H. Ward: Well sir, I didn't mean if we were Mohammedans.

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 --

Justice Hugo L. Black: You know whether anyone has ever suggested that they have to pass a law to read the Qur'an in school?

Mr. 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.

Justice Hugo L. Black: Why?

Mr. Phillip H. Ward: We don't know anything about it.

Justice Hugo L. Black: Is that the reason?

Mr. 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 --

Justice 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?

Mr. 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.

When I --

Justice Hugo L. Black: Everybody?

Mr. 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.

Justice 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.

Mr. Phillip H. Ward: The Pennsyl --

Justice Hugo L. Black: -- or it has the moral precepts which it does.

Mr. Phillip H. Ward: That is exactly it, sir.

Justice Hugo L. Black: That's the assumption we have to make.

Mr. 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.

Justice 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?

Mr. Phillip H. Ward: That would be unconstitutional.

Justice 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?

Mr. 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 --

Justice 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.

Mr. 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?

Justice Hugo L. Black: Yes.

Mr. 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 --

Justice 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?

Mr. Phillip H. Ward: I certainly would, sir.

Justice 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?

Mr. Phillip H. Ward: I would agree with that completely.

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

Chief Justice 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?

Mr. 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.

Chief Justice Earl Warren: Well, would an hour of instruction in morals beyond constitutional with a few moments of instruction would not be?

Mr. 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.

Chief Justice Earl Warren: Yes, it is very important.

Mr. 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.

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 --

Chief Justice Earl Warren: Isn't that our problem today?

Mr. Phillip H. Ward: It's exactly our problem today, sir.

And I -- and I are obviously --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice 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.

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.

Mr. 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.

Justice 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 --

Mr. Phillip H. Ward: I can see --

Justice Potter Stewart: -- notwithstanding the provision for excuses.

Mr. 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.

Justice Byron R. White: Well that is -- assuming that Engle and Vitale were governed to take --

Mr. Phillip H. Ward: Yes.

Yes, and I -- I respectfully submit it --

Justice Byron R. White: -- going on as --

Mr. Phillip H. Ward: It does not.

Justice Byron R. White: Are you going on with (Inaudible) to reexamine.

Mr. Phillip H. Ward: No.

I think our case is --

Justice 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?

Mr. 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 --

Chief Justice Earl Warren: If you have one final statement, you may make it if you do, Mr. Ward.

Mr. Phillip H. Ward: May I allow the Attorney -- Deputy Attorney General of Pennsylvania to make a final statement, sir.

Chief Justice Earl Warren: Well, do you have used your hour up.

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

Mr. Phillip H. Ward: Thank you.

Argument of John D. Killian Iii

Mr. John D. Killian Iii: Your Honor, may I make a short statement, about the --

Chief Justice Earl Warren: You may make a short statement.

Mr. John D. Killian Iii: -- at the end of the argument?

Chief Justice Earl Warren: Yes.

Yes.

I'll give you five minutes.

Mr. John D. Killian Iii: Thank you, sir.

Chief Justice Earl Warren: Mr. Sawyer.

Argument of Henry W. Sawyer Iii

Mr. 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.

Justice John M. Harlan: What page is that?

Mr. Henry W. Sawyer Iii: That's on page 99, Mr. Justice Harlan.

Justice Potter Stewart: The statute doesn't say anything about it?

Mr. 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.

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 --“

Justice Byron R. White: What do you mean?

Mr. 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.

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.

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.

Justice 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?

Mr. Henry W. Sawyer Iii: May I ask?

Justice Potter Stewart: I asked the question just from the facts.

Mr. Henry W. Sawyer Iii: Is this a case where --

Justice Potter Stewart: I may get the facts as I go along.

Mr. 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.”

Justice William J. Brennan: Well, yes these children are together.

They are together.

Mr. 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.

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

Justice William J. Brennan: 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.”

Mr. 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?

Justice 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?

Mr. Henry W. Sawyer Iii: Well, I -- I

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

Mr. 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.

Justice 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 --

Mr. Henry W. Sawyer Iii: Well, of course --

Justice Potter Stewart: Only religion?

Mr. 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?

Justice Hugo L. Black: What do you mean by de minimis?

Mr. Henry W. Sawyer Iii: Just that the incursion there is so --

Justice Hugo L. Black: The violation -- the violation of the Amendment is so little.

The Court is known always as the Court.

Mr. Henry W. Sawyer Iii: Yes, sir.

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

Justice Hugo L. Black: But do you think --

Mr. Henry W. Sawyer Iii: -- at some point of de minimis.

Justice 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?

Mr. 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 --

Justice John M. Harlan: (Inaudible)

Mr. 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 --

Justice 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.

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.

Mr. Henry W. Sawyer Iii: Well, that was I was trying to say.

Justice 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.

Mr. 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.

Justice 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.”

Mr. Henry W. Sawyer Iii: Well, of course he was the School District's witness and I did disagree with --

Justice Byron R. White: He's also a dean of the divinity school.

Mr. 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.

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 --

Justice Byron R. White: (Voice Overlap)

Mr. 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 --

Justice Byron R. White: That he had to do a version that would also be nonsectarian.

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Henry W. Sawyer Iii: I'm sorry to say I have not, sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Henry W. Sawyer Iii: I do not know if they do it.

Thank you, sir.

Justice 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.

Mr. 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.

Justice Byron R. White: You read it very well that one I might say.

Mr. 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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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 --

Justice 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.

Mr. Henry W. Sawyer Iii: Not a bit, sir.

Justice Byron R. White: Because it means action.

Mr. 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.

Justice Potter Stewart: Well, what would -- what would be his standing?

Mr. Henry W. Sawyer Iii: His standing I think would be just that.

Justice 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?

Mr. Henry W. Sawyer Iii: I think --

Justice Potter Stewart: I agree that --

Mr. Henry W. Sawyer Iii: -- that he would have standing.

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

But what would your standing be?

Mr. 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.

Justice Hugo L. Black: Have you discussed in your brief this problem that was raised as to whether or not this is de minimis?

Mr. Henry W. Sawyer Iii: Oh yes sir, I -- I have discussed that in this sense.

As an establishment de minimis?

Justice Hugo L. Black: Yes.

Mr. 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

Justice 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.

Mr. 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.

Justice Hugo L. Black: I'm afraid I said it too.

Mr. Henry W. Sawyer Iii: I think you did, sir.

Justice Hugo L. Black: The reason I have to stay by this article.

Mr. 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 --

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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.

Justice Arthur J. Goldberg: (Inaudible)

Mr. 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 --

Justice 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?

Mr. 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.

Justice Potter Stewart: Well, each one of the counsel men can do it, couldn't he, if he wanted to?

Mr. Henry W. Sawyer Iii: Well, if he pays for the time.

Justice Potter Stewart: That's what I'm saying.

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

Mr. 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.

Justice 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?

Mr. Henry W. Sawyer Iii: Yes sir, I think there is potential conflict in those two concepts.

Justice Hugo L. Black: In what way?

Mr. 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.

Justice Hugo L. Black: What are those?

Mr. 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.

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.

Justice Potter Stewart: Torcaso is a free exercise case.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice Potter Stewart: Was it not?

Very clearly it's a free exercise case.

Mr. Henry W. Sawyer Iii: Torcaso?

Justice Potter Stewart: Yes, you read this last summer --

Mr. Henry W. Sawyer Iii: Yes.

I think it's a free exercise case.

Justice Potter Stewart: And would you say Barnette was a free exercise case?

Mr. 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.

Justice Potter Stewart: I understood but to -- but to that particular sect, it violated their writ and their own religious principle --

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice 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.

Mr. 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.

Justice 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?

Mr. 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.

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 --

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

Mr. Henry W. Sawyer Iii: I think it was Murdock versus Pennsylvania, Your Honor --

Justice Potter Stewart: Which one?

Mr. 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.

Justice Potter Stewart: Well, Cantwell involved the -- it actually involved the free exercise.

Mr. Henry W. Sawyer Iii: Yes, sir.

Justice 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 --?

Mr. Henry W. Sawyer Iii: Where this kind of clause is involved.

Justice 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.

Mr. Henry W. Sawyer Iii: I think that's respectable as to option --

Justice 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)

Mr. Henry W. Sawyer Iii: I would say -- (Voice Overlap) in which that was involved.

Yes, sir.

Justice Potter Stewart: There was the Louisiana School Book case, wasn't there?

Well, perhaps we won't --

Mr. Henry W. Sawyer Iii: There was -- you mean a Louisiana School Book case before Everson?

Justice Potter Stewart: Yes.

Mr. Henry W. Sawyer Iii: The purchase of school books for parochial school --

Justice Potter Stewart: That was it, I think.

Mr. Henry W. Sawyer Iii: Yes sir, I just had the impression that was after Everson, but I'm -- I'm sure I stand corrected.

Justice Potter Stewart: But it's a relatively -- it's a relatively recent doctrine, isn't it?

Mr. 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.

Justice Byron R. White: How many, about three or four?

Mr. 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.

Justice Potter Stewart: No, we agreed earlier that was a free exercise case.

Mr. Henry W. Sawyer Iii: Oh just on establishment.

Justice Potter Stewart: And so as Torcaso?

Mr. Henry W. Sawyer Iii: So as Torcaso and now you have Engle.

Justice Potter Stewart: You have Engle.

Mr. 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.

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?

Justice William J. Brennan: Mr. Sawyer what -- have you said in this word of argument that, well even if it is religion, it's religious tradition.

Mr. 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.

Justice 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.

Mr. Henry W. Sawyer Iii: On the second opinion, Your Honor --

Justice Potter Stewart: It just didn't --

Mr. Henry W. Sawyer Iii: No.

Justice Potter Stewart: -- it decided the case entirely on the Establishment Clause.

Mr. Henry W. Sawyer Iii: Yes sir, they did on the second opinion.

Justice 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?

Mr. 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 --?

Justice 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.

Mr. Henry W. Sawyer Iii: No, I'm arguing that the inference --

Justice Potter Stewart: That under the -- under the existing system --

Mr. Henry W. Sawyer Iii: We have to.

Justice 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.

Mr. Henry W. Sawyer Iii: None whatsoever, (Voice Overlap) sir.

Justice 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?

Mr. 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.

Justice Potter Stewart: Now then, that wasn't court doing it?

Mr. 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.

Justice 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.

Mr. 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.

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.

Justice Potter Stewart: Who has the right, the child or the parent?

Mr. 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.

Justice Potter Stewart: Didn't he get -- does he have a constitutional right to do that?

Mr. Henry W. Sawyer Iii: Well, to do it, oh he brought her suit --

Justice Potter Stewart: -- some interested in it and believing in it.

Mr. 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.

Chief Justice Earl Warren: Mr. Killian?

Rebuttal of John D. Killian Iii

Mr. 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.

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.

Print this transcript Transcript: 

Argument of Francis B. Burch

Chief Justice Earl Warren: Mr. Kerpelman, you may proceed.

Mr. Francis B. Burch: It is -- I understand Mr. Kerpelman, this -- Mr. Chief Justice --

Chief Justice Earl Warren: Yes.

Mr. Francis B. Burch: -- do not propose to argue any further this time.

Argument of Leonard J. Kerpelman

Mr. Leonard J. Kerpelman: I intend to (Inaudible)

Rebuttal of Francis B. Burch

Mr. Francis B. Burch: That's it.

Rebuttal of Leonard J. Kerpelman

Mr. Leonard J. Kerpelman: I intend to sit at the meantime.

Chief Justice Earl Warren: Yes, very well.

Mr. Burch.

Rebuttal of Francis B. Burch

Mr. Francis B. Burch: Mr. Chief Justice, may it please the Court.

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

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

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

I merely say that by way of passing.

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

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

Now --

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

Mr. Francis B. Burch: Yes, Mr. Justice Stewart.

Justice Potter Stewart: Suing through his (Inaudible), his mother, and his mother, individually, is also a petitioner.

Mr. Francis B. Burch: Yes, sir.

Justice Potter Stewart: And they both alleged that they're atheists, is that correct?

Mr. Francis B. Burch: Yes, sir.

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

Mr. Francis B. Burch: That's correct, sir.

Justice William O. Douglas: It comes down to the Doremus case from New Jersey, is that right?

Mr. Francis B. Burch: The Doremus case held, of course, --

Justice William O. Douglas: Yes.

Mr. Francis B. Burch: -- there was no violation except that the question with respect to the individual child's rights was moot because the child had then graduated from the school.

Justice Potter Stewart: But this child is still in the school.

Mr. Francis B. Burch: This child is still in the school.

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

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

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

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

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

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

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

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

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

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

This is the Murray case.

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

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

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

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

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

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

This, we do not deny.

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

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

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

Now --

Justice Arthur J. Goldberg: Mr. Burch, (Inaudible)

Mr. Francis B. Burch: The Lord's Prayer is said in unison.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Francis B. Burch: It is recited together.

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

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

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

Justice Arthur J. Goldberg: What about the (Inaudible)

Mr. Francis B. Burch: I think the -- basically the King James Version is the one that is used most often.

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

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

Justice Potter Stewart: Teacher reads it in each classroom?

Mr. Francis B. Burch: Generally, the students who are conducting the morning exercises will read passages from the Bible as they will also start the Lord's Prayer and start the salute to the flag.

Justice Potter Stewart: Is this the one where it's a broadcast through the school or is that the (Voice Overlap) --

Mr. Francis B. Burch: No, never -- there is an assembly, it is broadcasted in every -- all of the students should -- that they gather and is done in unison in the assembly.

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

In others, I'm not sure.

I believe it might be conducted within the classroom itself.

Justice Potter Stewart: Each individual classroom.

Mr. Francis B. Burch: In each individual classroom.

Justice Potter Stewart: You say a student, rather than the teacher, reads the Bible?

Mr. Francis B. Burch: Student, generally, is the one who conducts the opening exercise.

Now, this is the best of my information.

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

Justice Potter Stewart: We don't have a record here.

Mr. Francis B. Burch: We don't have a record.

Justice Potter Stewart: That's the difficulty in this case.

Mr. Francis B. Burch: Because it came up on demurrer.

Justice William O. Douglas: Would your argument then vary, Mr. Burch, if this -- instead of the Bible, it was the Koran that was being read everyday in school?

Mr. Francis B. Burch: Mr. Justice Douglas, my argument would not change, sir.

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

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

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

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

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

Justice William J. Brennan: Well, Mr. Burch --

Mr. Francis B. Burch: Excuse me, sir?

Justice William J. Brennan: -- (Inaudible) under Section 6, are arguing that?

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

Justice William J. Brennan: I gather Section 6 (Inaudible).

Mr. Francis B. Burch: I'm sorry.

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

Justice William J. Brennan: It would not -- Section 6 preclude reading from the Koran?

Mr. Francis B. Burch: In that it specifically provides that it may be used, that is, the Douay Version may be used.

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

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

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

Justice William J. Brennan: Well, it says, “shall be opened by the reading of a chapter in the Holy Bible and/or the use of the Lord's Prayer.”

Mr. Francis B. Burch: And/or the use of the Lord's Prayer.

Justice William J. Brennan: Do you think that might be interpreted to authorize that reading from the Koran?

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

Justice Potter Stewart: It cannot be used to open the exercises but there's nothing there --

Mr. Francis B. Burch: In the opening exercises.

Justice Potter Stewart: -- that says it couldn't be used to close them or at any time during the exercises.

Mr. Francis B. Burch: It may be used --

Justice Potter Stewart: But I don't think that has anything to do with this case.

Mr. Francis B. Burch: During the exercise or -- actually, we say that the morning exercises are not there for religious purpose.

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

They were really religious schools.

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

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

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

It puts them in a frame of mind.

There is a sobering influence.

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

Justice Potter Stewart: But you could (Voice Overlap) --

Mr. Francis B. Burch: -- we have a respect for authority -- excuse me, sir.

Justice Potter Stewart: Just give them tranquilizer pills if that's the only --

Mr. Francis B. Burch: That's --

Justice Potter Stewart: That's the purpose.

Mr. Francis B. Burch: Dr. Brien says that what this does, it establishes a discipline tone.

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

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

Chief Justice Earl Warren: Let us take a state like Hawaii.

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

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

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

Mr. Francis B. Burch: Our position, Mr. Chief Justice, is this.

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

Chief Justice Earl Warren: Your answer --

Mr. Francis B. Burch: That --

Chief Justice Earl Warren: -- would be yes then, that they could do that.

Mr. Francis B. Burch: They could do that.

Chief Justice Earl Warren: Yes.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Francis B. Burch: I would say that it is one of the effects of the exercise, but it is only one of the many effects of the exercise.

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

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

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

This is our position.

Justice John M. Harlan: Of course, you've got the record down.

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

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

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

There was religiousness.

It was religious in its origin.

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

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

And true, it had the civil aspect to it.

This is what we say.

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

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

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

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

Mr. Francis B. Burch: Yes, Mr. Chief Justice.

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

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

Mr. Francis B. Burch: I say that they do stem from a violation of the Ten Commandments, but the mere fact that they're made crimes by law doesn't mean that they're in violation of the --

Chief Justice Earl Warren: But McGowan went on this theory --

Mr. Francis B. Burch: -- First Amendment.

Chief Justice Earl Warren: -- that there was such a departure from the original concept that they were in that category.

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

Chief Justice Earl Warren: Is there any departure whatsoever in your case from religious purposes?

Mr. Francis B. Burch: The only departure that --

Chief Justice Earl Warren: There is, I wish you'd state it.

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

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

I would like --

Justice Hugo L. Black: May I ask if --

Mr. Francis B. Burch: Yes, sir?

Justice Hugo L. Black: This -- if it depend on the majority of the people in the school district, does it necessarily follow that the religious doctrine that would be taught would naturally follow the majority in their district?

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

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

Justice Hugo L. Black: That's right.

Mr. Francis B. Burch: -- of some or all religions.

Justice Hugo L. Black: That's right.

And I --

Mr. Francis B. Burch: It doesn't make it unconstitutional.

Justice Hugo L. Black: Well, I'll call your attention to this fact.

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

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

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

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

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

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

Mr. Francis B. Burch: I am not drawing on McGowan as being the absolute authority.

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

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

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

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

Mr. Francis B. Burch: I am not disavowing anything in that respect.

What I am saying is --

Justice Hugo L. Black: You could not, could you?

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

Justice Hugo L. Black: So did the Koran and so do the Veda.

Mr. Francis B. Burch: The US decided --

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

Mr. Francis B. Burch: It would be pure speculation on my part to say whether they would or whether they wouldn't.

I can concede where they would.

I can concede where they would.

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

Justice Hugo L. Black: It's a religious principle.

Mr. Francis B. Burch: Pardon me?

Justice Hugo L. Black: Were they religious principles, of course.

Mr. Francis B. Burch: I think it --

Justice Hugo L. Black: It seems to me like --

Mr. Francis B. Burch: I think it's a combination of both.

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

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

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

I think it has religion in it.

Justice Byron R. White: Mr. Burch, you --

Mr. Francis B. Burch: I think it does not partake of religious instruction.

I think it does not partake of religion as such.

I think it has these other values.

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

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

It coincides with religion.

This, I cannot deny.

The --

Chief Justice Earl Warren: (Inaudible)

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

Chief Justice Earl Warren: Wouldn't the -- wouldn't their full religious ceremony constitute or accomplish the same purpose?

Mr. Francis B. Burch: If it's a full religious ceremony for religion itself?

Chief Justice Earl Warren: No, no, just to promote the -- just to promote the welfare of the students and to put them in a proper frame of mind for their work throughout the day.

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

Mr. Francis B. Burch: It's conceivable that it could have.

Chief Justice Earl Warren: And couldn't it be justified on your argument just as well?

Mr. Francis B. Burch: Again, I say that I think it goes again to a matter of degree.

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

Chief Justice Earl Warren: Could they go at all beyond the reading of the Lord's Prayer and reading of the Bible --

Mr. Francis B. Burch: I think that -- if there's any comment --

Chief Justice Earl Warren: -- as a matter of degree.

I beg your pardon?

Mr. Francis B. Burch: If there's any comment that has the -- partakes of the nature of instruction or discussion in these opening exercises, that it might well be an abridgment of the First Amendment, the Establishment Clause.

This is one of the factors that we have here.

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

This is different from Engel.

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

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

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

And then they follow with the Regent's Prayer.

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

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

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

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

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

Chief Justice Earl Warren: Isn't that merely paraphrasing?

Mr. Francis B. Burch: This is the statement (Voice Overlap) --

Chief Justice Earl Warren: Isn't that merely paraphrasing and enlarging upon the letter of your superintendent?

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

This is what the important part is in our opinion.

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

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

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

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

Justice William J. Brennan: Well, (Inaudible) --

Mr. Francis B. Burch: In other words, we didn't have --

Justice William J. Brennan: It didn't have the concern --

Mr. Francis B. Burch: Excuse me, sir?

Justice William J. Brennan: Chief Judge (Inaudible) did it.

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

Mr. Francis B. Burch: This was his conclusion.

This was his conclusion.

Justice William J. Brennan: Well, I don't find anything in the Court opinion which --

Mr. Francis B. Burch: I respectfully suggest that it was a dissenting conclusion.

Justice William J. Brennan: Well, I don't find anything in the Court opinion which takes issue of that.

Mr. Francis B. Burch: This was an assumption that he made and that there may have been some basis for his assumption.

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

Justice John M. Harlan: I think it would be helpful if, starting from the premise, that this is a religious exercise.

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

Mr. Francis B. Burch: Mr. Justice Harlan --

Justice John M. Harlan: Fourteenth Amendment, I beg your pardon.

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

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

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

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

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

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

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

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

We're talking about a traditional exercise.

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

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

This, I have no problem with.

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

Justice Arthur J. Goldberg: Is your basic point (Inaudible)

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

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

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

Justice John M. Harlan: What do you do with the --

Mr. Francis B. Burch: These are --

Justice John M. Harlan: What do you do with the McCollum case?

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

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

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

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

Mr. Francis B. Burch: I'm not quite sure I understood your question, Mr. Justice Harlan.

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

Mr. Francis B. Burch: No, I said it is -- I say it is not instruction.

We don't say that this is religious instruction.

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

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

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

This, I think, was the defect in McCollum.

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

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

The same thing is true of Barnette.

Justice Arthur J. Goldberg: What do you say to the fact, according to some, they wouldn't disagree that it's more offensive to read the Bible without this version than to discuss the Bible?

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

Justice Arthur J. Goldberg: That happens to be the truth, (Voice Overlap) --

Mr. Francis B. Burch: But, I would say this that I think that there can be danger in discussion.

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

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

Justice Potter Stewart: Mr. Burch --

Mr. Francis B. Burch: This is the problem that we see ourselves in.

Where does it lead?

Justice Potter Stewart: I didn't mean to interrupt you.

Mr. Francis B. Burch: No, excuse me.

I didn't know.

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

You haven't said a word about --

Mr. Francis B. Burch: The Free Exercise.

Justice Potter Stewart: -- the Free Exercise Clause.

Is somebody going to --

Mr. Francis B. Burch: Mr. Justice Stewart, I was just going to say that Mr. Baker --

Justice Potter Stewart: Fine, fine.

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

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

Mr. Francis B. Burch: I think this --

Justice Potter Stewart: Is that an overstatement?

Mr. Francis B. Burch: -- case is certainly a question of reexamination and how far did -- we want to go.

Justice John M. Harlan: Well, isn't that -- that's the real problem in the case.

Mr. Francis B. Burch: Yes -- Mr. Justice Harlan, I don't think there's any question that that's the problem.

Justice John M. Harlan: Yes.

I think so, too.

Chief Justice Earl Warren: I understood you to say you didn't quarrel with Vitale that you --

Mr. Francis B. Burch: I do not quarrel.

Chief Justice Earl Warren: -- believe that's perfectly alright; that our decision was alright.

Mr. Francis B. Burch: I do, sir.

Chief Justice Earl Warren: Well, then why do you want us to reexamine it?

Mr. Francis B. Burch: No.

No.

No I -- no, I didn't mean -- not reexamine Vitale.

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

In the very beginning of Vitale --

Chief Justice Earl Warren: Well, that's alright, but I understood you to answer Mr. Justice Harlan that you want us to reexamine these cases and --

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

I don't -- I cannot disagree with Vitale.

Justice Byron R. White: Well, Mr. Burch --

Chief Justice Earl Warren: Yes.

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

Mr. Francis B. Burch: Well, I --

Justice Byron R. White: And I understand you to say if you start with that premise, (Voice Overlap) --

Mr. Francis B. Burch: I might say, as -- well, I didn't understand Mr. Justice Harlan's question to be exactly that.

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

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

Thank you.

Chief Justice Earl Warren: Mr. Baker.

Argument of George W. Baker, Jr.

Mr. George W. Baker, Jr.: Mr. Chief Justice, may it please the Court.

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

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

One is the --

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

Mr. George W. Baker, Jr.: I think this Court as, by prior decisions, has forced us to --

Justice Potter Stewart: This one as well?

Mr. George W. Baker, Jr.: -- concede that, yes, sir.

Justice Potter Stewart: Well, I just wanted to be sure from what point where you beginning.

Mr. George W. Baker, Jr.: Yes, sir.

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

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

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

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

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

Justice Potter Stewart: The difficulty here --

Mr. George W. Baker, Jr.: Taking the --

Justice Potter Stewart: Excuse me.

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

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

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

Mr. George W. Baker, Jr.: Of course --

Justice Potter Stewart: They were establishment cases.

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

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

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

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

Now, this is no different than Barnette.

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

This is against my beliefs.

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

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

Torcaso was a similar thing.

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

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

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

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

I took an oath.

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

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

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

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

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

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

Suppose he objected to it.

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

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

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

I think the answer to that is quite clear.

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

Justice William J. Brennan: May I ask --

Mr. George W. Baker, Jr.: He --

Justice William J. Brennan: -- Mr. Baker.

This is an interruption, I'm sorry.

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

Mr. George W. Baker, Jr.: No, sir.

I said both of them are involved --

Justice William J. Brennan: Yes.

Mr. George W. Baker, Jr.: But that if you --

Justice William J. Brennan: But the establishment question is also here.

Mr. George W. Baker, Jr.: Yes, sir.

Justice William J. Brennan: -- on these allegations?

Mr. George W. Baker, Jr.: Yes, sir.

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

Justice Potter Stewart: Well, as I -- I know that there is that right expressed in the Amendment, the 1960 Amendment to the rules of the School Board, but these allegations, let's say in effect, that's a phony.

Actually, we don't.

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

Justice William J. Brennan: Well, it would be a conclusion --

Justice Potter Stewart: Upon an Atheist to conform to this thing.

Justice William J. Brennan: No allegation that no one has permitted him to be excused.

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

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

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. George W. Baker, Jr.: Yes, sir, and we --

Justice Arthur J. Goldberg: You demurred it?

Mr. George W. Baker, Jr.: We demurred it and even -- let me say this, that anyone who dissents runs the risk of disapproval.

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

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

Unknown Speaker: (Inaudible)

Justice Potter Stewart: That had to do with the establ -- excuse me, excuse me.

Justice Arthur J. Goldberg: You say assuming this is true, the fact that a pupil is excused satisfies the free religion clause, isn't that (Inaudible)

Mr. George W. Baker, Jr.: Yes, sir.

Yes, sir.

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

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

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

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

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

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

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

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

Justice Hugo L. Black: What do you think could come after if you should win?

Mr. George W. Baker, Jr.: I think you'd have -- you'd have the question as to the use of coins, “In God we trust.”

Justice Hugo L. Black: What do you think would come after it in the reference to the school ceremony?

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

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

Mr. George W. Baker, Jr.: Well, that -- of course, you go back to --

Justice Hugo L. Black: And why you shouldn't have all of them taken from the sacred books of one religion rather than another?

Mr. George W. Baker, Jr.: Mr. Justice Black, it's a question of the purpose.

As Mr. Burch mentioned --

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

Mr. George W. Baker, Jr.: I think if the decision is made that you can't have this -- as a part of the opening exercises that from there on --

Justice Hugo L. Black: If you could have it in the opening exercises, why can't you continue to have it during the whole day?

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

Mr. George W. Baker, Jr.: Because if there -- that then would be an abuse.

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

Justice Hugo L. Black: I've heard that before.

Mr. George W. Baker, Jr.: It's the same thing with the students.

Sir?

Justice Hugo L. Black: I've heard that a million times.

That's not your argument.

Mr. George W. Baker, Jr.: Well, but if you went on for an hour with that, it would be the same thing, if Your Honor please.

Thank you.

Chief Justice Earl Warren: Attorney General Finan.

Argument of Thomas B. Finan

Mr. Thomas B. Finan: May it please the Court.

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

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

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

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

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

I'll put it this way.

We concur insofar as he goes in that.

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

We feel this can be distinguished.

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

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

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

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

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

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

And I --

Chief Justice Earl Warren: Do we have to decide this case on the basis of theism or nontheism?

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

Mr. Thomas B. Finan: Believe as fervently --

Chief Justice Earl Warren: Were opposed to this case?

Mr. Thomas B. Finan: Believe as fervently in much, Mr. Justice?

Chief Justice Earl Warren: In God?

Mr. Thomas B. Finan: Yes.

Chief Justice Earl Warren: That's a basis of theism, is it not?

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

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

Mr. Thomas B. Finan: Well, I don't think it's necessarily of Atheism and Christianity --

Chief Justice Earl Warren: We have briefs amicus curiae in this case.

Mr. Thomas B. Finan: That is correct, Mr. Chief --

Chief Justice Earl Warren: There's a brief of the Synagogue Council of America and National Community Relations Advisory Council and --

Mr. Thomas B. Finan: That is correct, Mr. --

Chief Justice Earl Warren: -- there are some millions of people of that faith in this country so --

Mr. Thomas B. Finan: Correct, Mr. Chief Justice --

Chief Justice Earl Warren: They oppose it as fervently as these people who happen to be Atheist --

Mr. Thomas B. Finan: Correct.

Chief Justice Earl Warren: -- so why do we have to put it in that context?

Mr. Thomas B. Finan: Theism is broader than Christianity.

Chief Justice Earl Warren: I beg your pardon?

Mr. Thomas B. Finan: You said Atheism as advert to Christianity.

My point is theism is broader than Christian --

Chief Justice Earl Warren: Yes.

Mr. Thomas B. Finan: -- than the concept of Christianity.

Chief Justice Earl Warren: But by reading the Lord's Prayer and reading the King James Version of the Bible, we put the Christian concept of theism onto it, do we not?

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

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

Justice Hugo L. Black: Why not use that one then?

Mr. Thomas B. Finan: Pardon?

Justice Hugo L. Black: Why not use that one then?

Mr. Thomas B. Finan: I'm sure they would -- further, would be no objection.

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

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

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

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

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

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

Justice Potter Stewart: Mr. Attorney General --

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

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

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

But, you have a different case here.

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

That was completely absent in the Engel case, completely.

That case involved establishment and only establishment.

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

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

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

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

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

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

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

Justice Potter Stewart: But, its part isn't it of the -- of the complaint, actually.Perhaps not, but I know it's a part of the pleading.

Chief Justice Earl Warren: Did your Supreme Court based its decision on that ground?

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

In fact, they used those specific analogies.

Chief Justice Earl Warren: In other words, he treated the merits of the case.

Mr. Thomas B. Finan: Right.

Chief Justice Earl Warren: Yes.

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

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

Mr. Thomas B. Finan: If you please, Mr. Justice, I don't believe that the two allegations that he has there are consistent.

They could be released from it.

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

Justice Byron R. White: Well, he makes allegations right on the -- right on this that in spite of his being released from the exercises, that --

Mr. Thomas B. Finan: Well, that would not be --

Justice Byron R. White: That he was subjected to some harm and these allegations were admitted.

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

Justice Byron R. White: Well, let me ask you one other thing.

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

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

Justice Byron R. White: Yes, but that's assuming that it's a pray -- that it's a religious item and you say -- I gather, you join with Baltimore in saying that it wasn't a religious exercise at all.

Mr. Thomas B. Finan: No, I beg to differ, Mr. Justice.

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

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

Justice Byron R. White: So you say it wasn't part of a religious exercise.

Mr. Thomas B. Finan: Right.

Justice Byron R. White: And, is it as much of a religious exercise as it was in Vitale?

Mr. Thomas B. Finan: Yes, I definitely feel --

Justice Byron R. White: There's really no distinction in terms of the kind of an exercise this was between Vitale and this case.

Mr. Thomas B. Finan: No.

I think there -- the two cases can be distinguished --

Justice Byron R. White: Oh, yes, I know (Voice Overlap) --

Mr. Thomas B. Finan: -- but I think they're both involved in religious exercise.

They're both involved in a religious exercise.

In the Vitale case, you had a prayer --

Justice Byron R. White: I understand that.

Mr. Thomas B. Finan: -- composed.

And --

Justice Byron R. White: Of course, --

Mr. Thomas B. Finan: -- this --

Justice Byron R. White: -- Vitale -- the Vitale opinion said, “The state drafted or state sanctioned,” didn't it?

Mr. Thomas B. Finan: I said, “A straight -- State drafted or State sanctioned official prayer.”

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

Justice Byron R. White: But I suppose the School Board's rule here at least sanctioned the use of the King James Version of the Bible.

Mr. Thomas B. Finan: It sanctioned that, yes.

It said -- Or the Douay maybe --

Justice Byron R. White: Or sanctioned the Lord's Prayer.

Mr. Thomas B. Finan: That is correct.

Justice Byron R. White: Yes.

Mr. Thomas B. Finan: But the question is, these are prayers of tradition.

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

Justice Potter Stewart: These are clearly sectarian, unlike --

Mr. Thomas B. Finan: That's correct.

Justice Potter Stewart: -- unlike the prayer in Engel, which is (Inaudible)

Mr. Thomas B. Finan: That's right, Mr. Justice.

That's our situation on it.

Justice Byron R. White: There'd be very little sense of excusing anyone from the prayer.

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

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

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

Mr. Thomas B. Finan: Well, Mr. Justice, I don't think that sectarian the least, I wouldn't agree to that definition as employed by the Court.

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

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

Justice Byron R. White: I agree with you but nevertheless, in the School Board's rule which was promulgated, people were given permission to use different versions of the Bible.

Mr. Thomas B. Finan: That's right.

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

Justice Byron R. White: So, you're saying -- what you're really suggesting is that the only people who should've -- who ever should've been -- felt any urge to excuse themselves from this operation would be Atheists.

Mr. Thomas B. Finan: That's right.

Justice William J. Brennan: Is that the reason, you think, the provisions excused them, had the petitioners in mind to keep (Inaudible)

Mr. Thomas B. Finan: Your Honor -- Mr. Justice, I would certainly think the petition would indicate that that's the main reason that they object to this.

Justice William J. Brennan: No, I say, “Those who make the provision for the excuse have only Atheist in mind?”

Mr. Thomas B. Finan: No, Your Honor, anybody who might have some --

Justice William J. Brennan: Perhaps they didn't like the Protestant version or Protestants who didn't like --

Mr. Thomas B. Finan: That's right.

Justice William J. Brennan: -- Douay version.

Mr. Thomas B. Finan: That's correct.

Justice Byron R. White: Schools who didn't like the Holy Bible.

Mr. Thomas B. Finan: That's correct.

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

Justice Arthur J. Goldberg: (Inaudible)

Mr. Thomas B. Finan: Yes.

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

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

Justice William O. Douglas: Then the big contest would be which church could get -- control the School Board, I suppose.

Mr. Thomas B. Finan: Mr. Justice, let me state this.

Justice William O. Douglas: (Inaudible) -- are you suggesting --

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

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

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

It's kind of a local option.

If the majority wants one, they could get it.

The others can walk out.

Mr. Thomas B. Finan: Well, Mr. Justice --

Justice Hugo L. Black: That sounds to me like it was your suggesting a local option.

Mr. Thomas B. Finan: Mr. Justice, let me state this.

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

Justice Hugo L. Black: What would you think about its chance about being read in Baltimore?

Mr. Thomas B. Finan: The what's (Inaudible)?

Justice Hugo L. Black: What would you think about the chance of having the Book of Mormon substituted for the King James Version of the Bible in Baltimore?

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

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

Justice Hugo L. Black: Do you mean that's theoretically possible?

Mr. Thomas B. Finan: I would say that -- Mr. Justice, that this rule was written back in 1906.

It was amended later to allow an excuse.

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

I think that the public is willing --

Justice Hugo L. Black: I do not understand the other gentlemen to say that they shouldn't mention anything about religion.

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

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

But, other people don't feel that way.

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

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

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

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

Mr. Thomas B. Finan: I would concur with the Court and --

Justice Hugo L. Black: That's a local option in determining what -- which particular religion will be taught in each particular community.

Mr. Thomas B. Finan: No, if it is sincere representation of that area --

Chief Justice Earl Warren: But General, that -- let's take a very practical situation.

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

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

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

Mr. Thomas B. Finan: They would have the right to and I would --

Chief Justice Earl Warren: And you would -- do you think they would have the right to have such a ceremony as a matter of school law?

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

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

They have that right.

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

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

Mr. Thomas B. Finan: Well, they would still be educated by the school.

Justice Hugo L. Black: Not if they will -- but they would walk out that they didn't want that part at all.

Mr. Thomas B. Finan: Well, if they'd only walk out for that portion --

Justice Hugo L. Black: Could they be release from taxes to carry out these views if the majority wanted, which they didn't want?

Mr. Thomas B. Finan: My children had never gone to the public schools and I'm not released from taxes.

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

Justice Hugo L. Black: But they've -- they have not gone there through choice.

Mr. Thomas B. Finan: Pardon?

Justice Hugo L. Black: They have not gone there through choice.

The public schools were open to your children.

Mr. Thomas B. Finan: Well, you would exclude yourself --

Justice Hugo L. Black: But they were open to your children.

Mr. Thomas B. Finan: That's right.

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

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

Chief Justice Earl Warren: Mr. Kerpelman.

Rebuttal of Leonard J. Kerpelman

Mr. Leonard J. Kerpelman: Mr. Chief Justice.

Your Honors.

Justice William O. Douglas: Would your argument be the same if a Quaker pattern was followed in the -- all students' request to remain silent for a minute or two minutes or three minutes?

Mr. Leonard J. Kerpelman: Your Honor, a question which is perhaps involved is a question of standing.

Now, as I understand it, standing --

Justice William O. Douglas: That wasn't my question.

Mr. Leonard J. Kerpelman: Well, I was going to say this, Your Honor.

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

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

Justice Potter Stewart: Your client could stand there and think about his disbelief in God.

Mr. Leonard J. Kerpelman: Yes, he could, Mr. Stewart --

Justice William O. Douglas: Yes.

Mr. Leonard J. Kerpelman: -- Mr. Justice.

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

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

Justice Arthur J. Goldberg: If it were labeled the Quaker ceremony, would it be unconstitutional?

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

I understood the question pleaded.

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

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

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

That was my understanding of it.

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

The establishment has been made.

It has caused him detriment.

He has standing to complain.

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

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

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

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

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

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

After all, they're overlooking the fact --

Justice Potter Stewart: You're getting somewhat outside the Constitution.

Mr. Leonard J. Kerpelman: So I am, Mr. Justice.

I'm sorry.

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

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

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

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

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

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

In that same paragraph, incidentally --

Justice Potter Stewart: What page?

Mr. Leonard J. Kerpelman: 45, Mr. Justice.

Justice Potter Stewart: Thank you.

Mr. Leonard J. Kerpelman: Second paragraph.

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

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

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

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

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

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

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

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

Many people feel that way.

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

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

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

He represents minority groups of numerous sorts.

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

Justice John M. Harlan: How many -- I think I remember a figure (Inaudible) of this religious sect (Inaudible)

Is that the (Inaudible) right?

Mr. Leonard J. Kerpelman: I can't recall that thing, Your Honor.

It was mentioned in a case of this Court.

I can't recall it.

Justice John M. Harlan: I think we had it at the time --

Mr. Leonard J. Kerpelman: 267, which was the first.

Justice John M. Harlan: 267, something to that order.

Mr. Leonard J. Kerpelman: Yes.

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

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

Justice Arthur J. Goldberg: Its part of this exercise (Inaudible)

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

That's not usually done.

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

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

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

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

Whether it's used anywhere else, I don't know, but I've never seen --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Leonard J. Kerpelman: Well, it's pretty strongly a religious verse, “Thus be it ever when free men shall stand”, is that the verse, Your Honor?

The -- it's my favorite verse, it so happens.

It certainly has a highly theistic significance.

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

Justice Potter Stewart: If you're right about the -- about this case in the establishment --

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Potter Stewart: -- phase of it --

Mr. Leonard J. Kerpelman: Well, that --

Justice Potter Stewart: -- then I would agree with you.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Thank you.

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

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

Mr. Leonard J. Kerpelman: Yes, Your Honor.

We had no difficulty --

Justice Potter Stewart: -- to conform.

Mr. Leonard J. Kerpelman: -- whatever improving them.

The demurrer --

Justice Potter Stewart: Well, that's not up to us --

Mr. Leonard J. Kerpelman: Yes.

Justice Potter Stewart: -- where the -- whether --

Mr. Leonard J. Kerpelman: Yes, Mr. Justice.

Justice Potter Stewart: -- it should be difficult or easy for you to prove them or from the other side to disprove them.

Mr. Leonard J. Kerpelman: Yes.

Justice Potter Stewart: But that would be the appropriate thing to do, would it not?

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

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

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

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

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

Mr. Leonard J. Kerpelman: I can't go along with that, if Your Honor please, because here is a prayer which is taken --

Justice Arthur J. Goldberg: No, no.

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

Mr. Leonard J. Kerpelman: Oh, yes, Your Honor, yes.

Justice Arthur J. Goldberg: The song.

Mr. Leonard J. Kerpelman: Yes, I think we would have new standing if we had no detriment, but we definitely have suffered a detriment.

Justice Potter Stewart: What's your detriment, speaking purely now of the Establishment Clause?

What is your detriment?

Mr. Leonard J. Kerpelman: A religion has been established and as a result of the establishment of that religion, my client has been treated with aversion --

Justice Potter Stewart: Well, now, you're getting into something else, aren't you?

Mr. Leonard J. Kerpelman: I beg your pardon.

Am I, Your Honor?

Justice Potter Stewart: Well, I'm just asking you.

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

In other words (Voice Overlap) --

Mr. Leonard J. Kerpelman: Well Your Honor, we contend.

Now, I may be entirely wrong on my --

Justice Potter Stewart: I'm not talking about standing, in other words.

Mr. Leonard J. Kerpelman: Well, it seems to me that the -- that if this prayer is a sectarian prayer then it's an establishment of religion.

Justice Potter Stewart: Yes.

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

Mr. Leonard J. Kerpelman: It cause a detriment -- causes a detriment to my client by having him singled out and denominated as one who's -- does not believe in this particular religion.

Justice Potter Stewart: Well, that -- because it interferes with his free exercise.

Mr. Leonard J. Kerpelman: No, because he doesn't believe in it.

Justice Potter Stewart: Well, then, what -- then how does it -- well, how is it a detriment, as a taxpayer?

Mr. Leonard J. Kerpelman: We don't contend that a -- the detriment is as a taxpayer.

Now, we've been rather stubborn about that.

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

They won't have dogmas thrust upon them.

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

Justice Potter Stewart: And this -- then --

Mr. Leonard J. Kerpelman: If --

Justice Potter Stewart: -- you get back to the free exercise.

Mr. Leonard J. Kerpelman: Well, I don't understand it, Your Honor.

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

Justice Potter Stewart: Well, wouldn't you agree with this?

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

They all wanted to do it.

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

Mr. Leonard J. Kerpelman: It would be unconstitutional, but who would have standing to challenge it?

Justice Potter Stewart: Well, that's what I'm --

Mr. Leonard J. Kerpelman: Yes.

Justice Potter Stewart: -- that's my question.

Mr. Leonard J. Kerpelman: Well, no one would have standing to challenge it if they -- if there were no members of any minority.

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

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

Mr. Leonard J. Kerpelman: Yes, Your Honor.

They'd have a suburb --

Justice John M. Harlan: How did you accept the local option argument?

Mr. Leonard J. Kerpelman: No, I do not accept it.

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

Justice Arthur J. Goldberg: The Constitution establishes the definition.

Mr. Leonard J. Kerpelman: The Constitution established that.

Justice Potter Stewart: Well, now, what was -- wouldn't he have to sue as a taxpayer or --

Mr. Leonard J. Kerpelman: I don't feel --

Justice Potter Stewart: What would be his detriment if he came to that (Voice Overlap) --

Mr. Leonard J. Kerpelman: Well, there's been that language in the cases, Your Honor.

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

I don't think that the increment in taxes.

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

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

Justice Potter Stewart: What right would he be asserting?

Now, let's assume my imaginary case of a --

Mr. Leonard J. Kerpelman: Yes.

Justice Potter Stewart: -- 100% Methodist and they set up an official Methodist church.

Mr. Leonard J. Kerpelman: Yes, sir.

Justice Potter Stewart: In this county, this imaginary county in an imaginary state.

Mr. Leonard J. Kerpelman: Yes, Your Honor.

Justice Potter Stewart: In this nation.

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

He doesn't go to church.

He doesn't go near it.

What is his standing to object to that

Mr. Leonard J. Kerpelman: I think it would depend on the temper of the county.

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

He could show no detriment.

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

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

Justice John M. Harlan: But your (Voice Overlap) --

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

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

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

Mr. Leonard J. Kerpelman: Oh, I absolutely did not intend to say that, Your Honor.

I --

Justice Hugo L. Black: The Lord's Prayer comes from the sixth chapter of Matthew.

Mr. Leonard J. Kerpelman: Yes.

Justice Hugo L. Black: There are many people who devoutly believe admonition in that chapter that they should not pray in public.

Mr. Leonard J. Kerpelman: Yes, sir.

Justice Hugo L. Black: Even though they are earnest, devout, God-fearing Christians.

Mr. Leonard J. Kerpelman: Yes, sir.

Justice Hugo L. Black: Because that chapter, three verses before the Lord's Prayer begins, advises not to pray as the hypocrites do in public.

Go into your closet.

There, pray.

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

Why would not a man have a right?

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

Why should they not have a right to challenge it?

Mr. Leonard J. Kerpelman: Thank you Your Honor.