Abington School District v. Schempp

According to the Court, why does the Establishment Clause forbid government-mandated Bible reading in school, even if students are not required to participate? In the Court’s view, what is the test for whether a law violates the Establishment Clause? According to Justice Douglas’s concurrence, how else did the law violate the Constitution? In Justice Brennan’s view, why should the Court not interpret the Establishment Clause by trying to find the original intent of the Founders? According to Justice Stewart’s dissent, how is the Court’s decision showing hostility toward the majority’s “free exercise” of religion?
The First Amendment protects freedom of both speech and religion. Does the Court think differently about religious liberty and free speech? Compare the Court’s reasoning in Roth with its reasoning in Schempp.

The First Amendment begins by declaring that “Congress shall make no law respecting an establishment of religion.” In Everson v. Board of Education (1947), the Supreme Court held that the Establishment Clause also applies to the states through the Fourteenth Amendment, which means that state and local governments cannot make laws “respecting an establishment of religion.” Relying on a phrase used by Thomas Jefferson, the Court said that the Establishment Clause should be interpreted to erect a “wall of separation” between church and state. In Engel v. Vitale (1962), the Court decided that the “wall” prevented the state of New York from composing a non-denominational prayer to be said by students in public schools. The next year it decided Abington v. Schempp, which concerned a Pennsylvania law requiring that “[a]t least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day.” The students reading the verses from the Bible could select the passages and read from any version they chose. The law also said that “[a]ny child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family brought suit to stop the enforcement of the law, contending that their rights under the Establishment Clause were violated. The Court decided in favor of Schempp. Although the vote was 8-1, this decision (combined with Engel) was highly controversial, with critics charging that the Court had “expelled God from the public schools.”

—Jeffrey Sikkenga

Source: 374 U.S. 203; https://www.law.cornell.edu/supremecourt/text/374/203

Justice CLARK delivered the opinion of the Court, joined by Chief Justice WARREN and Justices BLACK, DOUGLAS, WHITE, HARLAN, BRENNAN, and GOLDBERG.

. . . The wholesome “neutrality” [of government toward religion] of which this Court’s cases speak . . . stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental 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 neutrality is found in the Free Exercise 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 thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus . . . the two clauses may overlap. . . . The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. . . . [T]here must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. 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 religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar, we find that . . . such an opening exercise [readings from the Bible and recitation of the Lord’s Prayer] is a religious ceremony and was intended by the State to be so. . . . Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause.

. . . [T]he State contends . . . that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. . . . The short answer . . . is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State’s recognition of the pervading religious character of the ceremony is evident from the rule’s specific permission . . . permitting nonattendance at the exercises. None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral inspiration or as a reference for the teaching of secular subjects.

The conclusion follows that, in both cases, the laws require religious exercises, and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of [James] Madison, “it is proper to take alarm at the first experiment on our liberties” (Memorial and Remonstrance Against Religious Assessments).

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools. We agree, of course, that the State may not establish a “religion of secularism” 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). We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’