Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Abington School Dist. v. Schempp

374 US 203 (Decided June 17, 1963)

Bill Long

This case is really two cases: Abington and Murray et al. v Curlett et al. The former case came from Pennsylvania and the latter, brought by the celebrated (at that time) atheist Madalyn Murray, from Baltimore. Both centered on the constitutionality of state statutes requiring a daily reading from the Bible, without comment, and recitation of the Lord's Prayer, at the beginning of the public school day. Though religious fundamentalists in our own day have frequently decried the Supreme Court's "taking prayer out of the public schools" in these cases, they were decided by identical 8-1 margins and the dissenter, Justice Potter Stewart, demurred primarily because the records in the cases had not been adequately developed and not necessarily because he would ultimately have come to different conclusions than the majority (though he did emphasize themes that were much more "accommodationist" than his "separatist" brethren).

The opinions in this case total almost 120 pages; this mini-essay will consider the majority opinion, a concurrence by Justices Harlan and Goldberg and the dissent by Justice Stewart. The next mini-essay will explore Justice Brennan's remarkable 70-page concurrence.

Speaking for the Majority

Justice Clark reviewed the facts of the respective cases, noting the statutory requirement of the daily reading and recitation, the possiblity of excusal, the choice of various Bibles to be used (King James, Douay, Revised Standard or Jewish) and the procedural posture of each case. In Abington the lower court found that the reading of 10 Bible verses without comment "possesses a devotional and religious character adn constitutes in effect a religious observance," and thus held the practice unconstitutuional. On the other hand, in Murray the plaintiffs pursued a mandamus action because the school board refused to rescind the rule, and the appellate courts upheld the practice, the Maryland Supreme Court by a 4-3 margin.

Justice Clark attempted to do two things in his majority opinion. First, he reiterated the principle of neutrality articulated in several of the Court's cases since Everson in 1947. He took pains to stress that religion has been a major cultural force in American history and that only 3% of Americans professsed no religous faith in 1962. Yet, despite these overwhelming statistics, religious freedom is also deeply embedded in our public and private life. Government's role was to be neutral, which meant, quoting Everson that the state cannot pass laws which "aid one religion, aid all religions, or prefer one religion over another." Nonpreferentialist theory, therefore, is at the heart of his opinion.

Second, he articulated a two-part test, which will become the first two prongs of the three-prong Lemon test in 1971, to determine if a practice violates the Establishment Clause. "The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or the inhibition of religion then the enactment exceeds the scope of legilsative power as circumscribed by the Constitution."

When he applied the facts to the newly-developed test, he concluded that both exercises were of religious character. Even though the Maryland courts emphasized the secular benefits of Bible reading (promotion of moral values, contradiction to the materialistic trends of the time, etc.), the Court concluded that the possiblity of readings from both Protestant and Catholic Bible translations indicated that the exercises were religious. Quoting Madison, who said in his 1785 Remonstrance that "it is proper to take alarm at the first experiment on our liberties," the Court concluded that these exercises were decidedly religious and therefore violated the Establishment Clause of the First Amendment.

Short Concurrence and Dissent

The burden of Justice Goldberg and Harlan's concurrence was to emphasize both their awareness of and support of some religious practices in public life (like governmentally-paid military chaplains), but to conclude that the practices here inviolved do not fall within any "acceptable concept of compelled or permitted accommodation" between state and church. The pervasive religiousity and direct government involvement in the prescription of prayer and Biblic reading actually is something that will give rise to very divisive influences, which the Amendment sought to avoid.

Justice Stewart, in dissent, observed that his reading of the Establishment Clause was more limited than his brethren: that it only prevented congressional establishment of a national church and interference with state establishments at the time (the last state establishment of religion, in Massachusetts, lasted until 1833). But what was even more troubling to him was the sense that, to use a phrase from the 1990s, the majority's decision considered religion in the public schools a "zero sum game." By taking away prayer and Bible reading, under the guise of an Establishment Clause violation, the majority might be trenching upon the Free Exercise rights of parents who wanted their children's school day to begin in this way. As long as government is not involved in proselytizing or compelling attendance at religious observances, he did not believe that a constitutional violation took place. Thus, ultimately, he would have remanded the cases for further findings on the possible coercive nature of the Bible reading and prayer practices in PA and MD.