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)

Zorach v. Clauson

343 US 306 (Decided April 18, 1952)

Bill Long

In this 6-3 decision, authored by Justice William O. Douglas, the Court upheld New York's "release-time" law, a law which permitted school districts to release students during school hours, on written requests of their parents, so they could leave the school building and grounds and go to religious centers for religious instruction. The dissenters (Black, Frankfurter and Jackson), objected on two grounds: Black and Jackson because the law tended to" establish" religion by using the State's coercive power to promote religion, and Frankfurter because procedural issues were ignored.

Majority Opinion

Four years earlier, in McCollum, the Court struck down (8-1) a similar Illinois "release-time" statute that permitted religious teachers to come onto the school property to offer religious instruction during school hours. Zorach, in contrast, offered those opportunities off-site, even though it was during the school day. Justice Douglas, writing for the majority, is seemingly rived by the same tensions as split Justice Black in Everson, which perplexed Justice Jackson in his Everson dissent. On the one hand, Justice Douglas, in laying out Establishment Clause doctrine, stresses that the state needs to be "neutral" in the matter; that "separation [between church and state] must be complete and unequivocal;" and, sounding like the Douglas of his free speech cases, that "The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute."

Then, on the other hand, he says that the First Amendment does not say "that in every and all respects there shall be a separation of Church and State." There is not to be "concert" or "union" or "dependence" between the two, and the state and religion should not be "hostile" to each other. Then, he says a line that, like Justice Stewart's ill-fated comment twenty-five years later on pornography, will come back to haunt him in the future because it will be quoted repeatedly by conservative jurists and fundamentalist Christians alike. "We are a religious people whose institutions presuppose a Supreme Being." Though he goes on to qualify this statement, it is not recalled or recanted.

With this cornucopia of insights that could provide ammunition for extremists of both positions, Douglas concludes that in this case the public schools are doing nothing more than "accommodating" their schedules to a program of outside religious instruction. As such it does not implicate the issues discussed in McCollum.

In Dissent

The dissenters focused on the way that this "optional" release-time was in fact a coercive use of state power. Justice Frankfurter dissented because evidence of the coercive nature of the program was not allowed at trial. Justice Black argued that the programs in McCollum were identical to those at issue here, except for their venue. As he defined the issue, it was the state making religious sects beneficiaries of its power to compel children to attend secular schools. It is only by wholly isolating the state from the religious sphere and compelling it to be neutral that the freedom of each denomination and of nonbelievers can be maintained, he argued. The state had, under the "soft euphemism" of "co-operation" illicitly stolen into the sacred area of religious choice.

Justice Jackson's dissent was even more pointed. Even though he himself confessed that he sent his children to religious schools, he observed that the religious institutions were not supportive of this kind of program after school because it would impact attendance in a major way. Thus, he concluded that not only is the state acting as the agent, witting or unwitting, of the church, but that the school is "a temporary jail" for a pupil who will not go to Church. So the program has the dual ills of making education screech to a halt while pupils are released, and it makes the schools an instrument of the church in furthering its aims. He said ominously, "We start down a rough road when we begin to mix compulsory public education with compulsory godliness." Jefferson's noble wall of separation had, for him, become "even more warped and twisted than I expected."

But Justice Jackson, and others, would soon retire, and a new batch of Justices would wrestle with these knotty issues.