vol. 28, no. 7 (July)

American

Civil Liberties

~ Union

Volume XXVIII

Marin Chapter Pot-Luck

Tom

SAN FRANCISCO, JULY, 1963

Speaker at

July 13 Meeting |

Thomas W. Braden, president of the State Board of Edu-

eation, under fire from Max Rafferty, State Superintendent

of Public instruction since the latter took office last year,

and most recently attacked by a segment of Southern Cali-

fornians because of his refusal to ban from school libraries

the Dictionary of American

Slang, will speak to the ACLU

members and their friends, Sat-

urday night, July 13.

Kent Estate

The occasion is the annual

membership meeting of Marin

ACLU which begins with the

customary potluck dinner at the

Kent estate, Kent Woodlands,

Marin County.

Braden, who has notified Chap-

ter Chairman Milen Dempster

that the subject of his talk will

be "Education and Civil Liber-

ties," has been a member of the

State Board of Education since

1959, and its president since June

1961. He is 45, and editor and

publisher of the Daily Blade-

Tribune of Oceanside.

He graduated from Dartmouth

College, Hanover, N.H., and

served as an infantry platoon

leader in the British 8th Army

(1941-43), and another two years

(1943-45) as a parachutist for the

U.S. Army's Office of Strategic

Services (OSS).

Taught English

Braden taught English at Dart-

mouth, and was first assistant to

its president from 1947 to 1948,

and executive of the college's

Great Issues Course. :

He has also served as execu-

tive secretary of the Museum of

Modern Art in New York, and

from 1949 to 1951, he was execu-

_ tive director of the American

Committee on United Europe,

under Gen. William J. (Wild

Bill) Donovan.

Following the latter service

he was appointed assistant to"

Allen W. Dulles, director of the

U.S. Central Intelligence Agency.

Newspaper Publisher

In 1954 he purchased the

Oceanside newspaper.

His writing includes `"Sub-

Rosa," a history of the OSS, co-

authored with Stewart Alsop,

and several newspaper articles

on his trips of inquiry into the

Soviet Union in 1961, and into

strife-torn Caribbean countries.

Braden is a member of the

Council on Foreign Relations,

and of the Congregational

Church. With his wife, Joan, and

their five daughters and two

sons, he lives at Oceanside. Mrs.

Braden is the former Joan E.

Ridley, who prior to moving west

was assistant to U.S. Secretary of

Health, Education and Welfare,

Oveta Culp Hobby.

On stage before Braden at the

ACLU meeting will be Elmer

Lee Thomas and Jim Wood, who

entertained the meeting last

year. Elmer Lee and Jim were

original members of the Gateway

Singers, and have been heard as

a duo in concerts throughout the

country. :

What to Bring

It is asked that those partici-

pating in the potluck dinner re-

frain from bringing their hand-

somest pottery, as every year

some of the containers get lost.

Those' whose last names begin

Intervention

THOMAS W. BRADEN

with letters A through N are re-

quested to bring hot dishes; O

through Z, salads. Iee cream and

coffee will be supplied by the

Marin Chapter. Admission: $1.50

for adults, 75 cents for students.

Directions

To reach the Kent estate, 200

Woodland Road, Kent Wood-

lands, from San Francisco: Over

the Golden Gate Bridge and up

the Redwood Highway to San An-

selmo turnoff; proceed to Col-

lege Avenue in Kentfield, turn

left and drive one long block to

the entrance of Kent Woodlands.

ACLU signs will be posted at

that point to direct further.

Sali Lieberman, Chairman

Chairman for the meeting is

Sali Lieberman, assisted by

board members

Fred Coolidge, Dempster, Libby

Ginsberg, Dr. Sam Hanzel, Helen

Kerr, Ming Levinson, Marion

Miller and Jerry Rubin, and also

Marin ACLU members Irving

Cohen and Leah Wesley.

The bar opens at 5 o'clock; din-

ner is at 6 and the program will

begin at 8 p.m.-H.B.K. .

ACLU In Birth

Control Case

The Board of Directors of the

ACLU of Northern California

voted last month to intervene on

behalf of Frederick H. Eaton,

Santa Rosa bookseller, who is

threatened with prosecution un-

der the Federal Comstock Law

for sending a book through the

mails which discusses birth con-

trol methods. The book in ques-

tion is "Birth Control Today," by

Dr. L. F. Whitney, biologist and

former Executive Secretary of

the American Eugenics Society.

It was published by the New

York firm of Thomas Nelson and

Sons.

Postal inspectors have told

Eaton that he will be prosecuted

unless he quits sending the book

through the mails and discontin-

ues advertising the book in pub-

lications that are sent through

the mails. oe

Ron Burnett, -

Number 7

Censorship

Of Mail to Be

Challenged

In October of 1962 the Cun-

ningham Amendment was enact-

ed providing that the Secretary

of Treasury was to determine

whether unsealed mail coming

from Communist countries or on

behalf of Communist countries

was political propaganda. If he so

determined the addressee was to

be so notified and the mail de-

stroyed unless the addressee indi-

cated that he wished the material

sent to him.

HUAC Recommendation

The Amendment grew out of a

recommendation of the House

Committee on Un-American Ac-

tivities and was attached as a

rider to the postal rate changes

and pay increase bill. President

Kennedy announced that he was

signing th bill "reluctantly" since

the postal rate increase was a

vital part of his program.

California Suits

`Recently the program was chal-

lenged in a suit brought by the

ACLU of Southern California and

the ACLU of Northern Califor-

nia plans to attack the program

shortly in a federal court suit.

The attack will be on the basis

that the United States by `"`de-

termining" that certain material

is "Communist political propa-

ganda" is exercising indirect cen-

sorship in violation of the First

Amendment's prohibition on

abridgment of free speech and

press.

Card File

It.is also of interest that Col-

lector of Customs George Brokaw

announced in a press interview

that a card file is being built up

of persons who desire to receive

Communist political propaganda.

The ACLU suit will ask for an

injunction restraining the main-

tenance of this list, disclosure of

its contents, and the enforcement

of the program.-M.W.K.

Federal

Louis Hartman Case

Quash Conte

Of Congress

For the second time a contempt of Congress indictment

against Louis Hartman (the "Jim Grady" of radio fame) has

been quashed by court order. The latest order was issued

by Federal District Court Judge Stanley Weigel of San Fran-

cisco who found that the second indictment was barred by

the five-year statute of limita-

tions. Hartman was first indicted

in 1958 when the House of Rep-

resentatives voted to cite him for

alleged contempt arising from

his refusal on freedom of speech

grounds to answer certain politi-

cal questions put to him by the

House Committee on Un-Ameri-

can activities at its San Fran-

cisco hearings in June of 1957.

ACLU Counsel

Hartman, represented by

ACLU attorneys, was brought to

trial on the first indictment and

was found guilty after the court

rejected his defense of vagueness

in the authorizing resolution of

the House committee, invalidity

Stanley Erle

(c)

LB

Brown Dies

Stanley Erle Brown, 40, Berke-

ley insurance man and a dedi-

cated and enthusiastic ACLU

member for the past 15% years,

died last month.

Stan had a number of inter-

ests-the Berkeley Co-op,

NAACP, the Berkeley Unitarian

Fellowship, Stiles Hall and the

ACLU. He joined the ACLU dur-

ing his senior year at the Uni-

versity of California while he

was Student president of Stiles

Hall.

Stan was a willing worker in

all of his causes. He gave of him-

self without seeking or expect-

ing anything in return. He loved

his friends and they loved him.

At the Memorial Service held at

the Unitarian Fellowship Hall in

Berkeley last month, there was

a standing room only crowd.

Stan is survived by his wife,

Beatrice, two children and his

mother, Grace Haehnlen Brown.

Judge Throws Out

`Rotten Apple' Theory

Federal District Court Judge William T. Sweigert on June

7th rejected the government's "rotten apple" theory in the

administration of section 1305 of the customs law under

which the entire contents of a package could be forfeited

and destroyed if the package contained even one "obscene"

item. The ruling came in a pro-

ceeding against some 12,000 girlie

magazines seized by the collector

of customs. ;

ACLU Contention

The U.S. Attorney alleged that

only a small portion of the maga-

zines were "obscene" but that

the whole shipment should be

destroyed under the rotten apple

theory since each package con-

tained one or more obscene

magazines. The ACLU argued, in

an exception to the government's

pleading, that the rotten apple

theory was unconstitutional as

an impermissible restraint on

freedom of the press.

No Authority -

Judge Sweigert in his decision

did not explicitly decide the con-

stitutional point but rather held

that section 1305 does not au-

thorize the destruction of non-ob-

scene material and that "There

is nothing in the section, read as

a whole, to suggest that the Con-

gress intended to suppress the

entry of, and to destroy, non-ob-

scene books or material merely

because they are found in pack-

ages with obscene but separable

books or material." The Judge

went on to say, "To construe the

statute otherwise would raise se-

rious question concerning its con-

stitutionality under the freedom

of speech clause of the First

Amendment and the due process

clause of the Fifth Amendment."

The magazines not alleged to be

obscene were ordered immedi-

ately returned to their owner,

Dr. Earl Sass.

Appeal Likely

The language on which the

government relies to support the

rotten apple theory has been in

the statute and its predecessors

since 1842. Although it is fre-

quently applied by the customs

authorities to coerce permission

to destroy certain books under

threat of destruction of all other

material in the same package,

this is the first square judicial

test of the rotten apple theory.

The United States Attorney has

asked Judge Sweigert to recon-

sider his decision and has indi-

cated that an appeal will be filed

if the decision is not changed.

the ~

of the committee inquiry as in-

vading First Amendment free-

doms, lack of probable cause

that he had any information of

use to the committee, lack of

. pertinency of the questions to a

proper legislative purpose, and

failure of the indictment to state

_the subject of the inquiry. The

Court of Appeals for the Ninth

Circut affirmed the conviction

in May of 1961. However, in June

of 1962 the United States Su-

preme Court granted certiorari

and reversed. the conviction and

ordered the first indictment dis-

missed on the ground that it was

fatally defective in that it did not

state how the committee's ques-

tions were pertinent to its sub-

ject of inquiry. The contempt

statute, 2 U.S.C. sec. 192, requires

that the questions be pertinent

to the question under inquiry.

Second Indictment

More than six months after

the Supreme Court decision find-

ing the first indictment defec-

tive, the Grand Jury for the

Northern District of California

returned a second indictment

against Hartman, this time

charging that the unanswered

questions were pertinent to the

subject of committee inquiry, to

wit: "The extent, character, and

Objects of Communist Parity ac-

tivities within the professions

and propaganda activities of a

Communist origin." It is this

second indictment which Judge

Weigel has now ordered quashed.

Government Contention

The United States Attorney de-

fended the new indictment on

the basis that even though the

basic five-year period had run, a

special statute, 18 U.S. Code sec.

3288, allowed the new indictment

by extending the period of limi-

tations when a previous indict-

ment is found defective. Judge

Weigel ruled that this extension

statute did not save the indict-

ment because-it only allows a

new indictment within the next

succeeding term of the court.

Court's Reasoning

Finding out what was the next

succeeding term of the court in

the Northern District of Califor-

nia proved to be a problem since

that court, by local rule, is in

continuous session and has no

terms. The local rule was based

on a statute allowing each court

to set its own terms. Judge Wei-

gel found that for the sole pur-

pose of construing section 3288

the terms of court in the North-

ern District of California remain

as they had been prior to the

continuous session rule and thus

the last day on which the second

indictment could have been re-

turned was November 5, 1962.

Alternative Ground

As an alternative ground for

his decision the judge held that

the six months the government

waited to return the new indict-

ment was an unreasonable time

and exceeded the authorization

of section 3288. The United

States has not yet announced

whether it will appeal Judge

-Weigel's decision as it has the

right to do. Considerable credit

for the Hartman victory should

go to volunteer attorneys Lau-

rent Frantz, Hartly Fleischman,

and Albert Bendich who worked

on the case with staff counsel

Marshall Krause.-M.W.K.

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG . . . Editor |

503 Market Street, San Francisco 5, California, EXbrock 2-469

Subscription Rates -- Two Dollars a Year

: Twenty Cents Per Copy

Ralph B. Atkinson

Dr. Alfred Azevedo

Prof. Arthur K. Bierman

Rev. Richard Byfield

Prof. James R. Caldwell

William: K. Ceblentz

Richard DeLancie

John J. Eagan

Rabbi Alvin I. Fine

Mrs. Zora Cheever Gross

Prof. Van D. Kennedy

Rey. F. Danford Lion

Prof. Seaton W. Manning

Honorary Treasurer:

Jeseph M. Thompson

Honorary Board Member

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Joseph Eichler

Morse Erskine

Dr. H. H. Fisher

Mrs. Margaret C. Hayes

Prof. Ernest Hilgard

Mrs, Paul Holmer

Mrs. Mary Hutchinson

Richard Johnston

Reger Kent

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard A. Friedman |

VICE-CHAIRMEN: Dr. Alexander Meiklejohn

Helen Salz

Rev. Harry B. Scholefield

_SECRETARY-TREASURER: John M. Fowle

EXECUTIVE DIRECTOR: Ernest Besig

Committee of Sponsors

John R. May

Lloyd L. Morain

Prof. Herbert L. Packes

William M. Roth

Clarence E. Rust

John Brisbin Rutherford

Mrs. Alec Skolnick

Mes. Martin Steiner

Gregory S. Stout

Stephen Thiermann

Richard J. Werthimer

Donald Vial

GENERAL COUNSEL

Wayne M. Collins

Mrs. Ruth Kingman

- Prof. Theodore Kreps

Prof. Carlo Lastrucci

Norman Lezin

Prof. John Henry Merryman

Rev. Robert W. Moon

Dr. Marvin J. Naman

Prof. Hubert Phillips

Prof. Wilson Record

Dr. Norman Reider

Prof. Wallace Stegner

Mrs. Theodosia Stewart

Mrs. Kathleen D. Tolman

Rt. Rev. Sumner Walters

e Twel

ifth Report Is

Stale and Unprofitable

A twelfth report has now come creping out of the State

Senate Factfinding Committee on Un-American Activities

and, with the exception of a curiously misinformed and un-

naturally tolerant chapter of the non-un-American Activities

of the John Birch Society, it offers nothing that was not al-

__ ready old and tired when presented in the third, fourth and

fifth reports.

For many a biennium, the regular appearance of this

worked-over document has served to enlarge and consolidate

opinion that it accomplishes nothing more with its tax-sup-

ported "investigations" than to preserve a career for a few

self-anointed experts. To be fair, they doubtless labor long

and diligently in trying to blow a semblance of life into their

mummified specialty.

The 1963 redaction of their oft-told tale is every bit as

flat, stale and unprofitable as its predecessors. It seems des-

tined to attract and hold a minimum of readers, even among

State Senators who are on its subscription list.

We have long suspected that the editor-in-chief of this

warmed over opus, Richard E. Combs, the committee counsel,

has lost his touch with his public. His horror tales of Commu-

nist conspiracies and conspirators no longer pack a wallop,

rewrite them as he will. As Walter Lippman observed yes-

terday, there is a new tide in human affairs "bringing in a

generation which is losing interest in the postwar conflict

_ between the crusading Communists and the crusading anti-

Communists." The committee sorely needs a new crusade.-

Editorial, San Francisco Chronicle, June 13, 1963

Governor Commutes

_ Ashley's Sentence to Life

Governor Brown acted on June

17th to commute the death sen-

tence of Clarence Ashley to life

imprisonment without possibil-

ity of parole. ACLU staff coun-

sel Marshall W. Krause had writ-

-ten the Governor that the case

_ presented serious issues of due

process of law because of Ash-

ley's mental condition at the

time of his trial. Mental factors

played the major role in the de-

cision for commutation, the Gov-

ernor stating: "The medical evi-

dence alone provided sufficient

ground for my decision that this

is a proper case for the exercise

of executive clemency."

Beard Votes To Intervene

The ACLU Board of Directors

voted last month to intervene in

Ashley's case on the basis of the

deprivation of his right to the

ACLU NEWS

JULY, 1963

Pade 2

adequate assistance of counsel.

After Ashley's arrest for the

murder of a child, he was found

too insane to face trial for a pe-

riod of 14 months. Three psychi-

atrists then testified that he was

able to understand the nature of

the proceedings and cooperate

with counsel.

Acted As Own Counsel

Ashley then insisted on acting

as his own attorney but asked for

the appointment of an attorney

in an advisory capacity. This re-

quest was denied. The ACLU

takes the position that while Ash-

ley may have been competent to

stand trial, he was not competent

to decide that he would stand

trial without any legal advice.

Further Breakdown

One of the psychiatrists who

had examined Ashley told the

Governor at the clemency hear-

ing that it was his opinion that

Ashley had suffered a further

psychotic breakdown in_ the

midst of the trial. Justice Ray--

Loiterine

statute

Challenged

Most lawyers were of the opin-

ion that crimes of status, as con-

trasted with conduct, were elimi-

nated in California with the 1961

revision of the vagrancy statute.

Evidently unnoticed, however,

was Penal Code section 647a(2)

making vagrants of all persons

who "loiter about any school or

public place at or near which

children attend or normally con-

gregate."

Two Arrests

Two residents of San Fran-

eisco's North Beach have been ar-

rested for violating this statute

while stretched out on the grass

of a public park at 10 am. The

ACLU has filed a demurrer in

their cases which will be heard

by Municipal Judge Clayton

Horn. The demurrer challenges

the constitutionality of the stat-

ute on the basis that it is vague,

not capable of uniform applica-

tion, and unreasonable to the

point of punishing conduct inno-

cent of any harm.

What Does "Loiter' Mean?

There is much room for differ-

ence as to what the word "loiter"

means and it is seldom, if ever,

that a man with a coat and tie or

even with as little to recommend

him as a clean shave is accused

of loitering. The ACLU has long

taken the position that loitering

arrests are a form of harass-

ment for persons a police officer

does not like. California cases on

the subject are rare, but one case

did allow a statute (now re-

pealed) to stand which punished

loitering at transportation termi-

nals by persons who had been

convicted of theft.

Harshest Aspect

The harshest aspect of section

647a(2) is that the "offense" is

seemingly tied in with children

and thus appears to be punish-

ment of lewd or dissolute con-

duct with children. In fact, other

statutes reach this type of of-

fense and 647a(2) does not even

require the presence of children.

The loitering punished is in a

public place where children may,

at some future time, attend or

congregate. The statute is evi-

dently rarely used and it is

hoped that it will now be perma-

nently put to rest -M.W.K.

ACLU Tests

"Under God'

In Pledge

The ACLU filed suit in the Los

Angeles Superior Court last

month testing the constitutional-

ity of the words "under God" in

the pledge of allegiance. The suit

was filed in behalf of Haswell

Parker, 51, a Los Angeles high

school history teacher.

In 1959, the Los Angeles Board

of Education made a daily reci-

tation of the Pledge of Allegiance

mandatory in schools under its

jurisdiction. Teachers are re-

quired to participate in the cere-

mony.

Parker does not belong to any

church and is conscientiously op-

posed to the phrase "under God."

A similar issue arose in San

Francisco a couple of years ago

when a teacher refused to par-

ticipate in the pledge. The prin-

cipal reported her to the Super-

intendent for possible discipli-

nary action. When the teacher

conformed no action was taken.

mond Peters of the California

Supreme Court and attorney Carl

Shapiro, appointed to represent

Ashley by the Governor, also

told the Governor that the case

was a proper one for executive

clemency.

The ACLU will probably file a

habeas corpus petition on behalf

of Ashley to raise the question of

his competency to waive coun-

sel -M.W.K.

Supreme Court

Will Hear

Telephone Case

The California Supreme Court

has ordered that an alternative

writ of prohibition issue to test

whether the San Francisco Su-.

perior Court is exceeding its ju-

risdiction in proceeding with

Edgar J. Sokol's action for dam-

ages against the Pacific Tele-

phone and Telegraph Company.

Sokol, represented by ACLU

staff counsel Marshall Krause,

has sued the Telephone Company

and two police officers for dam-

ages. caused by the destruction. of

his business after his four tele-

phones were removed because

the Company received a letter

from the police officers that the

telephones were being used to

aid an illegal purpose.

Sokol was given no notice of

the telephone removal or chance

to deny the information in the

policemen's letter. In fact, a hear-

ing before the Public Utilities

Commission determined that So-

kol was not using the telephones

to aid an illegal purpose and

they were restored to him. How-

ever, this action came too late

to prevent the destruction of his

business.

The Telephone Company takes

the position that as long as it

acts on a letter from a policeman

it is immune from civil liability

even though the letter was wrong

and it made no investigation of

the truth of the letter's contents.

It claims this immunity comes

from a 1948 Public Utilities Com-

mission decision and that the

trial court had no jurisdiction to

hear Sokol's action. Superior

Court Judge Joseph Karesh ruled

that the 1948 P.U.C. decision did

not deprive the court of jurisdic-

tion and it is this ruling which

the Supreme Court will examine

when it hears argument on the

case in September.-M.W.K.

Exorbitant Bail

In Welfare

Fraud Cases

The ACLU has been investigat-

ing several cases of possible

abuse of governmental authority

in stopping welfare payments in

Bay Area counties. While two of

these cases were still under in-

vestigation the welfare recipi-

ents were charged with criminal

' offenses by the local district at-

torney. In an Alameda County

case a woman with six children

was charged with perjury, grand

theft, and giving false informa-

tion in connection with aid for

one of the children. Police ar-

rested her without notice on a

Sunday and her bail was set at

$11,550. Another mother of sev-

eral children in Santa Clara

County was charged with grand

theft and making a false state-

ment and her bail was set at

$780.

In both cases the women had

no resources of their own but

were living on a welfare dole.

Neither woman had a criminal

record of any sort and both had

been residents of their communi-

ties for several years. On mo-

tion of ACLU staff counsel

Marshall Krause and a_ brief

statement of the personal history

of the defendant, bail was re-

duced to zero by municipal court

judges in both counties and the

defendants were released on

their own recognizance. Without

these motions both defendants

probably would have remained.

in jail until their trials or until

they pleaded guilty. Their chil-

dren would have been taken care

of by relatives or friends or by

the juvenile authorities. This is

a good example of the injustice

done by automatic setting of bail

without regard for individual re-

sponsibility of the defendant.

-M.W.K.

San Jose Street

Meeting Law

Under Study

Despite lack of a City Council

permit, required under a San

Jose ordinance, the Young So-

cialist Alliance held a_ street

meeting on Seventh St., outside

the San Jose State Cafeteria on

May 24. Two to three hundred

persons were attracted to the

meeting, not to speak of seven

police officers. No effort was

made to arrest any of the speak-

ers who performed -more than

two hours.

Before the meeting, the ACLU

condemned the ordinance as un--

constitutional and urged the City

Council to refer the matter to

the City Attorney for an opinion. |

Thereafter, the City Attorney

contacted the Santa Clara

Chapter ACLUNC for its objec-

tions to the ordinance, and his

office is presently studying the

matter.

Under the ordinance, permits

are limited to "events of a patri-

otic, municipal or memorial char-

acter." The City Council may re-

voke a permit at any time if the

meeting "may be conducted in

an illegal, improper or disor-

derly manner."

While the U.S. Supreme Court

has upheld reasonable regula-

tions governing street meetings,

it has "consistently condemned

licensing systems which vest in

an administrative official discre-

tion to grant or withhold a per-

mit upon broad criteria unre-

lated to proper regulation of pub-

lic places." Streets and parks

"have immemorially been held in

trust for purposes of assembly,

communicating thoughts he-

tween citizens, and discussing

public questions."

Mid-Peninsula

Champagne

Reception July 7

The Annual Champagne Recep-

tion of the Mid-Peninsula Chap-

ter of the ACLUNC will be held

Sunday afternoon, July 7, from 1

te 5 o'clock at the Robert Klein

residence, 100 La Sandra Way,

Westridge (Portola Valley). The

public is invited and members

are urged to bring "prospective

members."

Entertainment is scheduled to

begin at 2 p.m. and features Felix

Greene, the traveller and author,

and Ernest Besig, ACLU execu-

tive director.

This year, the reception will

not only cater to the champagne

sippers but the beer drinkers as

well.

Communist

Speaker Ban

Ait U.C. Lifted

The 12-year ban on Communist

speakers was lifted by the Board

of Regents last month on all nine

campuses effective at once. The

only dissenters in the 15-2 vote

were John Canaday of Burbank

and Dr. Max Rafferty. The issue

is one in which the Student Civil

Liberties Union in Berkeley was

particularly active. The Regents'

resolution reads, in part, as fol-

lows:

"Any off-campus speaker may

be allowed to speak on the cam-

pus of the University in accord-

ance with the policy set forth in

the University's regulation on the

use of University facilities.

"Whenever the respective chan-

cellor considers it appropriate in

furtherance of educational objec-

tives, he may require any or all

of the following:

"1. That the meeting be chaired

by a tenure member of the fac-

ulty;

"2. That the speaker be subject

to questions from the audience;

and

"3. That the speaker be ap-

propriately balanced in debate

with a person of contrary opin-

ion."

Following is the majority opin-

ion by Justice Tom C. Clark in

the U.S. Supreme Court's June

17, 1963, decision in the Lord's-

Prayer and Bible reading cases,

except for a few paragraphs and

the footnotes. Copies of the opin-

jons are now on order and should

be available for about 25 cents

by July 10.

Once again we are called upon

to consider the scope of the pro-

vision of the First Amendment

to the United States Constitution

which declares that "Congress

shall make no law respecting an

establishment of religion or pro-

hibiting the free exercise thereof

....' These companion cases pre-

sent the issues in the context of

state action requiring that

schools begin each day with

-readings from the Bible. While

raising the basic questions under

slightly different factual situa-

tions, the cases permit of joint

treatment. In light of the history

of the First Amendment and of

our cases interpreting and apply-

ing its requirements, we hold

that the practices at issue and

the laws requiring them are un-

constitutional under the estab-

lishment clause, as applied to

the states through the 14th

Amendment.

I.

The facts in each case: No. 142.

The Commonwealth of Pennsyl-

vania by law, 24 Pa. Stat. Sec-

tion 15-1516, as amended, Pub.

Law 1928 (supp. 1960) Dec. 17,

1959, requires that "at least ten

verses from the Holy Bible shall

be read, without comment, at the

opening of each school day. Any

child shall be excused from such

Bible reading, upon the written

request of his parent or guard-

jan." The Schempp family, hus-

band and wife and two of their

_three children, brought suit to |

enjoin enforcement of the stat-

ute, contending that their rights.

under the 14th Amendment to

the Constitution of the United

States are, have been, and will

continue to be violated unless

this statute be declared unconsti-

tutional as violative of these pro-

visions of the first amendment.

They sought to enjoin the ap-

pellant school district, wherein

the Schempp children attend

school, and its officers and the

superintendent of instruction, of

the commonwealth from continu-

ing to conduct such readings and

recitation of the Lord's Prayer

in the public schools of the dis-

trict pursuant to the statute. A

three-judge statutory District

Court for the Eastern District of

Pennsylvania held that the stat-

ute is violative of the establish-

ment clause of the First Amend-

ment as applied to the states by

the due process clause of the 14

Amendment and directed that

appropriate injunctive relief is-

sue. 201 F. supp. 815. On appeal

by the district, its officials and

the superintendent, under 28

U.S.C. section 1253, we noted

probable jurisdiction 371 USS.

807.

The appellees, Edward Lewis

Schempp, his wife Sidney, and

their children, Roger and Donna,

are of the Unitarian faith and

are members of the Unitarian

Church in Germantown, Phila-

delphia, Penn., where they, as

well as another son, Ellory, regu-

larly attend religious services.

The latter was originally a party

but having graduated from the

school system pendente lite was

voluntarily dismissed from the.

action. The other children attend

the Abington Senior High School

which is a public school operated

by appellant district.

On each day at the Abington

Senior High School between 8:15

and 8:30 A.M., while the pupils

are attending their home rooms

or advisory sections, opening ex-

ercises are conducted pursuant

to the statute. The exercises are

broadcast into each room in the

school building through an inter-

communications system and are

conducted under the supervision

of a teacher by students attend-

ing the school's radio and tele-

vision workshop. Selected stu-

dents from this course gather

each morning in the school's

workshop studio for the exer-

cises, which include readings by

one of the students of 10 verses

of the Holy Bible, broadcast to

each room in the building. This

is followed by the recitation of

the Lord's Prayer, likewise over

the intercommunications system,

but also by the students in the

various classrooms, who are

asked to stand and join in repeat-

`ing the prayer in unison. The

exercises are closed with the flag

salute and such pertinent an-

nouncements as are of interest to

the students. Participation in the

opening exercises, as directed by

the statute, is voluntary. The stu-

dent reading the verses from the

Bible may select the passages

and read from any version he

chooses, although the only copies,

furnished by the school are the

King James Version, copies of

which are circulated to each

teacher by the school district.

During the period in which the

exercises have been conducted

the King James, the Douay and

the revised standard versions of

the Bible have been used, as well

as the Jewish holy scriptures.

There are no prefatory state-

ments, no questions asked or

solicited, no comments or ex-

planations made and no interpre-

tations given at or during the ex-

ercises. The students and parents

are advised that the student may

absent himself from the class-

room or, should he elect to re-

main, not participate in the ex-

ercises.

It appears from the `record

that in schools not having an in-

tercommunications system the

Bible reading and the recitation

of the Lord's Prayer were con-

ducted by the home-room teach-

er, who chose the text of the

verses and read them himself or

had students read them in rota-

tion or by volunteers. This was

followed by a standing recita-

tion of the Lord's Prayer, to-

gether with the pledge of alle-

giance to the flag by the:class in

unison and closing announce-

ment of routine school items of

interest.

At the first trial Edward

Schempp and the children testi-

fied as to specific religious doc-

trines purveyed by a literal read-

ing of the Bible "which were

contrary to the religious beliefs

they held and to their: familial

teaching." 177 F. supp. 398, 400.

The children testified that all of

the doctrines to which they re-

ferred were read to them at vari-

ous times as part of the exer-

cises. Edward Schempp testified

at the second trial that he had

considered having Roger and

Donna excused from attendance

at the exercises but decided

against it for several reasons, in-

cluding his belief that the chil-

dren's relationships with their

teachers and classmates would

be adversely affected.

Expert testimony was intro-

duced by both appellants and

appellees at the first trial, which

testimony was summarized by

the trial court as follows:

"Dr. Solomon Grayzel testified

that there are marked differ-

ences between the Jewish- holy

scriptures and the Christian Holy

Bible, the most obvious of which

was the absence of the New

Testament in the Jewish holy

scriptures. Dr. Grayzel testified

that portions of the New Testa-

ment were offensive to Jewish

tradition and that, from the

standpoint of Jewish faith, the

concept of Jesus Christ as the

Son of God was `practically blas-

phemous.' He cited instances in

the New Testament, which, as-

sertedly, were not only sectarian

in nature but tended to bring the

Jews into ridicule or scorn.

"Dr. Grayzel gave.as his expert

opinion that such material from

the New Testament could be ex-

plained to Jewish children in

such a way as to do no harm to

them. But if portions of the New

Testament were read without ex-

planation, they could be, and in

his specific experience with chil-

dren Dr. Grayzel observed, had

been, psychologically harmful. to

the child and had caused a di-

visive force within the social

media of the school.

"Dr. Grayzel also testified that

there was significant difference

in attitude with regard to the

respective books of the Jewish

and Christian religions and that

Judaism attaches no special sig-

nificance to the reading of the

Bible per se and that the Jewish

holy scriptures are source ma-

terials to be studied. But Dr.

Grayzel did state that many por-

tions of the New, as well as of

the Old, Testament contained

passages of great literary and

moral value."

Dr. Luther A. Weigle, an ex-

pert witness for the defense,

testified in some detail as to the

reasons for and the methods em-

ployed in developing the King

James and the revised standard

versions of the Bible. On direct

examination, Dr. Weigle stated

that the Bible was nonsectarian.

He later stated that the phrase

"nonsectarian" meant to him

nonsectarian within the Christian

faiths.

Dr. Weigle stated that his defi-

nition of the Holy Bible included

the Jewish' holy scriptures, but

also stated the Holy Bible would

not be complete without the New

Testament. He stated that the

New Testament "conveyed the

message of Christians." In his

opinion, reading of the Holy

Scriptures to the exclusion of the

New Testament would be a sec-

tarian practice. Dr. Weigle stated

that the Bible was of great moral,

historical and literary value. This

is conceded by all the parties and

is also the view of the court." 177

F. supp. 398, 401-402.

The trial court, in striking

down the practices and the stat-

ute requiring them, made specif-

ie findings of fact that the chil-

dren's attendance at Abington

Senior High School is compul-

sory and that the practice of

reading 10 verses from the Bible

is also compelled by law. It also

found that:

"The reading of the verses,

even without comment, possesses

a devotional and religious char-

acter and constitutes in effect a

religious observance. The devo-

tional and religious nature of the

morning exercises is made all the

more apparent by the fact that

the Bible reading is followed im-

mediately by a recital in unison

by the pupils of the Lord's

Prayer. The fact that some

pupils, or theoretically all pupils,

might be excused from attend-

ance at the exercises does not

mitigate the obligatory nature of

the ceremony for . . . Section

1516 . . . unequivocally requires

the exercises to be held every

school day in every school in the

Commonwealth.

"The exercises are held in the

school buildings and perforce are

conducted by and under the au-

thority of the local school au-

thorities and during school ses-

sions. Since the statute requires

the reading of the `Holy Bible' a

Christian document, the practice

. prefers the Christian reli-

gion. The record demonstrates

that it was the intention of...

the Commonwealth .. . to intro-

duce a religious ceremony into

the public schools of the Com-

monwealth." 201 F. Supp., at 819.

No. 119. In 1905 the Board of

School Commissioners of Balti-

more City adopted a rule pursu-

ant to Art. 77, Section 202 of the

annotated code of Maryland. The

rule provided for the holding of

opening exercises in the schools

of the city consisting primarily

of the "reading, without com-

ment, of a chapter in the Holy

Bible and-or the use of the

Lord's Prayer."

The petitioners, Mrs. Madalyn

Murray and her son, William J.

Murray, 3rd, are both professed

atheists. Following unsuccessful

attempts to have the respondent

school board rescind the rule

this suit was filed for mandamus

to compel its rescission and can-

eellation.

It was alleged that William

was a student at a public school

of the city and Mrs. Murray, his

mother, was a taxpayer therein;

that it was the practice under the

rule to have a reading on each

school morning from the King

James Version of the Bible; that

at petitioners' insistence the rule

was amended (1) to permit chil-

dren to be excused from the ex-

ercise on request of the parent

and that William had been ex-

cused pursuant thereto; that

nevertheless the rule as amend-

ed was in violation of the peti-

tioners' rights `to freedom of re-

ligion under the First and 14

Amendments" and in violation

of "the principle of separation

between church and state, con-

tained therein .. ." The petition

particularized the petitioners'

atheistic beliefs and stated that

the rule, as practiced, violated

their rights.

"In that it threatens their re-

ligious liberty by placing a pre-

mium on belief as against non-

belief and subjects their free-

dom of conscience to the rule of

the majority: it pronounces be-

lief in God as the source of all

moral and spiritual values, equat-

ing these values with religious

values, and thereby renders sin-

ister, alien and suspect the be-

lief and ideals of .. . petitioners,

promoting doubt and question of

their morality, good citizenship

and 200d talth. . .

If.

It is true that religion has been

closely identified with our his-

tory and Government. As we

said in Engel v. Vitale, 370 U.S.

421, 434 (1962), "The history of

man is inseparable from the his-

tory of religion. And .. . since

the beginning of that history

many people have devoutly be-

lieved that `more things are

wrought by prayer than this

world dreams of.' " :

In Zorach v. Clauson, 343 U.S.

306, 313 (1952), we gave specific

recognition to the proposition

that "we are a religious people

whose institutions pre-suppose a

Supreme Being." :

The fact that the founding

fathers believed devotedly that

there was a God and that the un-

alienable rights of man. were

rooted in him is clearly evi-

denced in their writings, from

the Mayflower Compact to the

Constitution itself. This back-

ground is evidenced today in our

public life through the continu-

ance in our oaths of office from

the Presidency to the alderman

of the final supplication, "So

help me God."

Likewise czch house of the

Congress provides through its

chaplain an opening prayer, and

the sessions of this court are de-

elared open by the crier in a

short ceremony, the final phrase

of which invokes the grace of

God. Again, there are such mani-

festations in our military forces,

where those of our citizens who

are under the restrictions of mili-

tary service wish to engage in

voluntary worship.

- Indeed, only last year an offi-

cial survey of the country indi-

cated that 64 per cent of our

people have church membership,

Bureau of Census, United States

Department of Commerce, Sta-

tistical Abstract of the United

States, 48 (83d ed. 1962), while

less than 3 per cent profess no

religion whatever. Id. at P. 46.

It can be truly said, therefore,

that today, as in the beginning,

our national life reflects a re-

ligious people, who, in the words

of Madison, are "earnestly pray-

. in duty bound, that

the Supreme Lawgiver of the

ing, as ..

universe .. . guide them into

every measure which may be

worthy of His... blessing ..."...

This is not to say, however,

that religion has been so identi-

fied with our history and Govern-

ment that religious freedom is

not likewise as strongly im-

bedded in our public and private

life. Nothing but the most telling

of personal experiences in reli-

gious persecution suffered by

our forebears, see Everson v.

Board of Education, supra, A18-

11, could have planted our belief

in liberty of religious opinion

any more deeply in our heritage.

It is true that this liberty fre-

quently was not realized by the

colonialists, but this is readily

accountable to their close ties to

the mother country. However,

the views of Madison and Jeffer-

son, preceded by Roger Williams,

came to be incorporated not only

in the Federal Constitution but

likewise in those of most of our

states. ...

Hil.

Almost a hundred years ago in

Minor v. Board of Education of

Cincinnati Judge Alphonzo Taft,

father of the revered Chief Jus-

tice, in an unpublished opinion

stated the ideal of our people as

to religious freedom as one of

"absolute equality before the law

of all religious opinions and

sects..."

"The Government is neutral,

and while protecting all, it pre-

fers none, and it disparages

none."

Before examining this "neu-

tral" position in which the es-

tablishment and free exercise

clauses of the First Amendment

place our Government it is well

that we discuss the reach of the

amendment under the cases of

this Court.

First this Court has decisively

settled that the First Amend-

ment's mandate that "Congress -

shall make no law respecting an

establishment of religion, or pro-

hibiting the free exercise there-

of" has been made wholly ap-

plicable to the states by the 14th

Amendment. Twenty-three years

ago, in Cantwell v. Connecticut,

310 U.S. 296, 303 (1940), this

Court, through Mr. Justice Rob-

erts, said:

"The fundamental concept of

liberty embodied in that [14th}

Amendment embraces the liber-

ties guaranteed by the First

Amendment. The First Amend-

ment declares that Congress

shall make no law respecting an

establishment of religion or pro-

hibiting the free exercise thereof.

The 14th Amendment has _ ren-

dered the legislatures of the

states as incompetent as Con-

gress to enact such laws..." ...

Second, this Court has rejected

unequivocally the contention that

the establishment clause forbids

only governmental preference of

one religion over another. Al-

most 20 years ago in Everson,

supra, at 15, the Court said that

neither a state nor the Federal

Government can set up a church.

Neither can pass laws which aid

one religion, aid all religions, or -

prefer one religion over an-

other. And Mr. Justice Jackson,

dissenting, agreed:

"There is no answer to the

proposition ... that the effect of (c)

the religious freedom amend-

ment to our Constitution was to

take every form of propagation

of religion out of the realm of

things which could directly or

indirectly be made public busi-

ness and thereby be supported in

whole or in part at taxpayers'

expense ... This freedom was

first in. the Bill of Rights be-

cause it was first in the fore-

fathers' minds; it was set forth

in absolute terms, and_ its

-Continued on Page 4

ACLU NEWS

JULY, 1963

Page 3

Continued from Page 3-

Strength is its rigidity." Id., at

26.

Further, Mr. Justice Rutledge,

joined by Justices Frankfurter,

Jackson and Burton, declared:

"The {First} Amendment's

purpose was not to strike merely

at the official establishment of

a single sect, creed or religion,

outlawing only a formal relation

such as had prevailed in England

and some of the colonies. Neces-

sarily it was to uproot all such

relationships. But the object was

broader than separating church

and state in this narrow sense.

It was to create a complete and

permanent separation of the

spheres of religious activity and

civil authority by comprehen-

sively forbidding every form of

public aid or support for reli-

gion." Id. at 31-32....

While none of the parties to

either of these cases has ques-

tioned these basic conclusions of

the Court, both of which have

been long established, recognized

and _ consistently reaffirmed,

others continue to question their

history, logic and efficacy. Such

contentions, in the light of the

consistent interpretation in cases

of this Court seem entirely un-

tenable and of value only as aca-

demic exercises.

IV.

The interrelationship of the

establishment and the free ex-

ercise clauses was first touched

upon by Mr. Justice Roberts for

the Court in Cantwell v. Connec-

ticut, supra, at 303, where it was

said that their "inhibition of

legislation" had "a double as-

pect."

"On the one hand, it forestalls

compulsion by law of the accept-

ance of any creed or the practice

of any form of worship. Freedom

of conscience and freedom to ad-

here to such religious organiza-

tions or form of worship as the

~~. individual may choose cannot be

restricted by law. On the other

hand, it safeguards the free exer-

cise of the chosen form of reli-

gion. Thus the amendment em-

braces two concepts - freedom

to believe and freedom to act.

The first is absolute, but, in the

nature of things, the second can-

not be."

A half dozen years later in

`Everson v. Board of Education,

supra, at 1415, this Court,

through Mr. Justice Black, stated

that the "scope of the First

Amendment ... was designed

forever to suppress" the estab-

lishment of religion or the pro-

hibition of the free exercise

thereof.

In short, the Court held that

the amendment "requires the

state to be a neutral in its rela-

tions with groups of religious

believers and nonbelievers, it

does not require the state to be

' their adversary. State power is

no more to be used so as. to

handicap religions than it is to

favor them," id., at 18.

And Mr. Justice Jackson, in

dissent, declared that public

schools are organized "On the

premise that secular education

can be isolated from all religious

teaching so that the school can

inculcate all needed temporal

knowledge and also maintain a

strict and lofty neutrality as to

religion. The assumption is that

after the individual has been in-

structed in worldly wisdom he

will be better fitted to choose his

religion." id., at 23-24.

Moreover, all of the four dis-

~ sgenters,

speaking through Mr.

Justice Rutledge, agreed that:

"Our constitutional policy ...

does not deny the value or neces-

sity for religious training, teach-

ing or observance. Rather it se-

cures their free exercise. But to

that end it does deny that the

state can undertake or sustain

them in any form or degree.

"Ror this reason the sphere of

religious activity, as distin-

guished from the secular intel-

lectual liberties, has been given

the two-fold protection and, as

the state cannot forbid, neither

ACLU NEWS

JULY, 1963

Page 4

ean it perform or aid in perform-

ing the religious function. The

dual prohibition makes that func-

tion altogether private." id., at

52.

Only one year later the Court

was asked to reconsider and re-

pudiate the doctrine of these

cases in McCollum.v. Board of

Education.

It was argued that "Histori-

cally the First Amendment was

intended to forbid only Govern-

ment preference of one religion.

over another .. . In addition they

ask that we distinguish or over-

rule our holding in the Everson

ease that the 14th Amendment

made the `establishment of re-

ligion' clause of the First Amend-

ment applicable as a prohibition

against the states." 333 U.S., at

211.

The Court, with Mr. Justice

Reed alone, dissenting, was un-

-able to "accept either of these

contentions," ibid.

Mr. Justice Frankfurter, joined

by Justices Jackson, Rutledge

and Burton, wrote a very com-

prehensive and scholarly concur-

rence in which he said that "sepa-

ration is a requirement to abstain

from fusing functions of govern-

ment and of religious sects, not

merely to treat them all

equally." Id., at 227. Continuing,

he stated that:

"The Constitution ... prohibit-

ed the Government common to

all from becoming embroiled

however innocently, in the des-

tructive religious conflicts of

which the history of even this

country records some dark

pages." Id., at 228.

In 1952 in Zorach v. Clauson,

supra, Mr. Justice Douglas for

the Court reiterated:

"There cannot be the slightest

doubt that the First Amendment

reflects the philosophy that

church and state should be sepa-

rated. And so far as interference

with the `free exercise' of reli-

gion and an `establishment' of

religion are concerned, the sepa-

ration must be complete and un-

equivocal. The First Amendment

within the scope of its coverage

permits no exception; the prohi-

bition is absolute.

"The First Amendment, how-

ever, does not say that in every

and all respects there shall be a

separation of church and state.

Rather, it studiously defines the

manner, the. specific ways in

which there shall be no concert

or union or dependency one on

the other. That is the common

sense of the matter." 343 U.S., at

312.

And then in 1961, in McGowan

v. Maryland, and in Torcaso v.

Watkins each of these cases was

discussed and approved. Chief

Justice Warren in McGowan, for

a unanimous court on this point

said:

"But, the First Amendment in

its final form, did not simply bar

a Congressional enactment estab-

lishing a church. It forbade all

laws respecting an establishment

of religion. Thus this Court has

given the amendment a `broad

interpretation ... in the light of

its history and the evils it was

designed forever to suppress

... " 366 U.S., at 441-442.

And Mr. Justice Black for the

Court in Torcaso, without dissent

but with Justices Frankfurter

and Harlan concurring in the re-

sult, used this language:

"We repeat and again reaffirm

that neither a state nor the Fed-

eral government can constitution-

ally force a person `to profess a

belief or disbelief in any reli-

gion.' Neither can constitution-

ally pass laws or impose require-

ments which aid all religions as

against non-believers, and

neither can aid those religions

based on a belief in the existence

of God as against those religions

founded on different beliefs."

367 U.S., at 495.

Finally, in Engle v. Vitale,

only last year these principles

were so universally recognized

that the Court without the cita-

tion of a single case and over the

sole dissent of Mr. Justice Stew-

art reaffirmed them.

Reports' Case Noted

The Court found the 22-word

prayer used in "New York's pro-

gram of daily classroom invoca-

tion of God's blessings as pre-

scribed by the Regent's prayer,

to be a religious activity." 370

USS., at 424.

It held that "it is not part of

the business of government to

compose official prayers for any

group of the American people to

recite as a part of a

program carried on by the gov-

ernment." Id., at 425.

In discussing the reach of the

establishment and free exercise

clauses of the First Amendment

the Court said:

"Although these two clauses

may in certain instances overlap,

they forbid two quite different

kinds of governmental encroach-

ment upon religious freedom.

The establishment clause, unlike

the free-exercise clause, does not

depend upon any showing of di-

rect governmental compulsion

and is violated by the enactment

of laws to establish an official re-

ligion whether those laws oper-

ate directly to coerce non-observ-

ing individuals or not.

"This is not to say, of course,

that laws officially prescribing

a particular form of religious

worship do not involve coercion

if government is placed behind a

particular religious belief, the

indirect coercive pressure upon

religious minorities to conform

to the prevailing officially ap-

proved religion is plain." Id., at

420-431.

And in further elaboration the

Court found that the "first and

most immediate purpose [of the

establishment clause} rested on a

belief that a union of govern-

ment and religion tends to de-

stroy government and to degrade

religion." Id., at 431. When gov-

ernment, the Court said, allies it-

self with one particular form of

religion the inevitable result is

that it incurs "the hatred, disre-

spect and even contempt of

those who held contrary beliefs."

Ibid.

Ns

The wholesome "neutrality" of

which this Court's cases speak

thus stems from a recognition of

the teachings of history that

powerful sects or groups might

bring about a fusion of govern-

mental and religious functions or

a concert or dependency of one

upon the other to the end that

official support of the state or

Federal Government would be

placed behind the tenets of one'

or of all orthodoxies. This the

establishment clause prohibits.

And a further reason for neu-

trality is found in the free ex-

ercise clause, which recognizes

the value of religious training,

teaching and observance and,

more particularly, the right of

every person to freely choose his

own course with reference there-

to, free of any compulsion from

the state. This the free exercise

clause guarantees.

Thus, as we have seen, the

two clauses may overlap. As we

have indicated the establishment

clause has been directly consid-

ered by this Court eight times

in the past score of years and,

with only one Justice dissenting

on the point, it has consistently

held that the clause withdrew all

legislative power respecting re-

ligious belief or the expression

thereof.

The test may be stated as fol-

lows: What are the purpose and

the primary effect of the enact-

ment?

If either is the advancement

or inhibition of religion then the

enactment exceeds the scope of

legislative power as circum-

sci:bed by the Constitution. That

is 0 say that to withstand the

strictures of the establishment

clause there must be a secular

legislative purpose and a primarv

effect that neither advances nor

inhibits religion. Everson v.

Board of Education, supra; Mc-

Gowan v. Maryland, supra, at 442.

The free exercise clause, like-

wise considered many times here,

withdraws from legislative pow-

er, State and Federal, the exer-

tion of any restraint on the free

exercise of religion. Its purpose

religious -

is to secure religious liberty in

the individual by prohibiting any

invasions thereof by civil author-

ity. Hence it is necessary in a

free exercise case for one to

show the coercive effect of the

enactment as it operates against

him in. the practice of his re-

ligion.

The distinction between the

two clauses is apparent-a _ vio-

lation of the free exercise clause

is predicated on coercion while

the establishment clause viola-

tion need not be so attended.

Applying the _ establishment

elause principles to the cases at

bar we find that the states are .

. requiring the selection and read-

ing at the opening of the school

day of verses from the Holy

Bible and the recitation of the

Lord's Prayer by the students in

unison. These exercises are pre-

scribed as part of the curricular

activities of students who are re-

quired by law to attend school.

They are held in the school

buildings under the supervision

and with the participation of

teachers employed in those

Schools.

None of these factors, other

than compulsory .school attend-

ance, was present in the pro-

gram upheld in Zorach v. Clau-

son, the trial court in No. 142

has found that such an opening

exercise is a religious ceremony

and was intended by the state to

be so. We agree with the trial

court's finding as to the religious

character of the exercises. Giv-

en that finding, the exercises and

the law requiring them are in

violation of the . establishment

clause. |

There is no such specific find-

ing as to the religious character

of the exercises in No. 119, and

the state contends (as does the

state in No. 142) that the pro-

gram isan effort to extend its

benefits to all public school chil-

dren without regard to their re-

ligious belief. Included within its

secular purposes, it says are the

promotion of moral values, the

contradiction to the materialistic

trends of our times, the perpetu-

ation of our institutions and the

teaching of literature.

The case came up on demur-

rer, of course, to a petition which

alleged that the uniform practice

under the ru_e had been to read

from the King James Version of

the Bible and that the exercise

was sectarian. The short answer,

therefore; is that the religious

character of the exercise was ad-

mitted by the state. But even if

its purpose is not strictly reli-

gious, it is sought to be accomp-

lished through readings without

comment from the Bible.

Surely the place of the Bible

as an instrument of religion can-

not be gainsaid, and the state's

recognition of the pervading re-

ligious character of the ceremony

-is evident from the rule's specific

permission of the alternative use

of the Catholic Douay version as _

well as the recent amendment

permitting non-attendance at the

exercises.

None of these factors is con-

sistent with the contention that

the Bible is here used whether

as an instrument for nonreligious

moral inspiration or as a refer--

ence for the teaching of secular

subjects.

The conclusion follows that in

both cases the laws require re-

ligious exercises and .such exer-

cises are being conducted in di-

rect violation of the rights of the

appellees and petitioners. Nor are

these required exercises miti-

gated by the fact that individual

students may absent themselves

upon parental request, for that -

fact furnishes no defense to a

claim of unconstitutionality un-

der the establishment clause, See

Engel v. Vitale, supra, at 430.

Further, it is no defense to

urge that the religious practices

here may be relatively minor en-

ecroachments on the First Amend-

ment. The breach of neutrality

that is today a trickling stream

may all too soon become a raging

torrent and, in the words of

Madison, "It is proper to take

alarm at the first experiment on

our liberties.' Memorial and re-

monstrance against religious as-

sessments, quoted in Everson

supra at 65.

It is insisted that unless these |

religious exercises are permitted

"religion of secularism" is estab-

lished in the schools. We agree

of course, that the state may not

establish a "religion of secular-

ism" in the sense of affirmatively

opposing or showing hostility to

religion, thus "preferring those

who believe in no religion over

those who do believe.". Zorach v.

Clauson, supra at 314. We do

not agree, however, that this de-

cision in any sense has that ef-

fect. SS :

In addition, it might well be

said that one's education is not

complete without a study of com-

parative religion or the history

of religion and its relationship

to the advancement of civiliza-

tion. It certainly may be said that

the Bible is worthy of study for

its literary and historic: qualities.

Nothing we have said here in-

dicates that such study of the

Bible or of religion, when pre-

sented objectively as part of a

secular program of education,

may not be effected consistent

with the First Amendment. But

the exercises here do not fall

into those categories. They are

religious exercises, required by

the states in violation of the com-

mand of the First Amendment

that the government maintain

strict neutrality, neither aiding

nor opposing religion.

Finally, we cannot accept. that

the concept of neutrality, which

does not. permit a state to re-

quire a religious exercise even

with the consent of the majority

of those affected, collides with

the majority's right to free exer-

cise of religion.

While the free exercise clause

clearly prohibits the use of state

action to deny the right of free

exercise to anyone it has never

meant that a majority could use

the machinery of the state to

practice its beliefs. Such a con-

tention was effectively answered |

by Mr. Justice Jackson for the

Court in West Virginia Board of

Education v. Barnette, 319 U.S.

624, 638, (1943).

"The very purpose of a Bill of

Rights was to withdraw certain

subjects from the vicissitudes of

political controversy, to place

them beyond the reach of major- -

ities and officials and to establish

them as legal principles to be ap-

plied by the courts. One's right

to . . . freedom of worship ...

and other fundamental rights

may not be submitted to vote;

they depend on the outcome of

no elections."

The place of religion in our so--

ciety is an exalted one, achieved "

through a long tradition of reli-

ance on the home, the church

and the inviolable citadel of the

individual heart and mind. We

have come to recognize through

bitter experience that it is not

within the power of government

to invade that citadel, whether

its purpose or effect be to aid or .

oppose, to advance or retard.

In the relationship between

man and religion, the state is

firmly committed to a position (c)

of neutrality. Though the appli-

cation of that rule requires in-

terpretation of a delicate sort,

the rule itself is clearly and con-

cisely stated in the words of the

First Amendment. Applying that

rule to the facts of these cases,

we affirm the judgment in No.

142. In No. 119, the judgment is

reversed and the cause remanded

to the Maryland. Court. of Ap-

peals for further proceedings

consistent with this opinion.

It is so ordered.

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