ACLU Pros & Cons

School District of Abington Township v. Schempp
Decided on June 17, 1963; 374 US 203

The First Amendment Establishment Clause forbids state mandated reading of the Bible or recitation of prayer in public school.



A. Issues Discussed: Freedom of Religion

B. Legal Question Presented:

Are state enacted laws requiring that public schools provide time for Bible reading, at the opening of each school day, in violation of the establishment and free exercises clauses of the First Amendment?


A. Background:

In both cases the states of Pennsylvania and Maryland enacted laws that required in effect that "the Holy Bible shall be read, without comment, at the opening of each public school on each school day" and that children could be excused from reading and/or attending the Bible reading exercises upon written request of the parents.

In Abington, (Case no. 142), the Schempp family of Unitarian faith, filed a law suit "to enjoin enforcement of the statute, contending that their rights... are, have been and will continue to be violated unless this statute be declared unconstitutional as violative of the First Amendment." The father testified that he believed that excusing his children "from attendance at the exercises" would adversely affect his "children's relationships with their teachers and classmates." The District Court held that the statute was in violation of the First Amendment. The US Supreme Court reviewed the case on appeal.

In Murray, (Case No. 119), the petitioners, professed atheists, sought to compel the rescission and cancellation of the city rule requiring Bible reading, stating that "the rule, as practiced, violated their rights." The Court of Appeals upheld the law "holding the exercise not in violation of the First and Fourteenth Amendments of the City rule. The US Supreme Court reviewed the case on writ of certiorari.

The Supreme Court held that the schools' Bible reading laws were unconstitutional and affirmed the judgment of the District Court in Abington and reversed the judgment of the Court of Appeals in Murray.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance in No. 142 and reversal in No. 119, were filed by Morris B. Abram, Edwin J. Lukas, Burnett Roth, Arnold Forster, Paul Hartman, Theodore Leskes and Sol Rabkin for the American Jewish Committee et al.; by Leo Pfeffer, Lewis H. Weinstein, Albert Wald, Shad Polier, Samuel Lawrence Brennglass and Theodore R. Mann for the Synagogue Council of America et al.; and by Herbert A. Wolff, Leo Rosen, Morris L. Ernst and Nancy F. Wechsler for the American Ethical Union.

Henry W. Sawyer III argued the cause for appellees in No. 142. With him on the brief was Wayland H. Elsbree. Leonard J. Kerpelman argued the cause and filed a brief for petitioners in No. 119.

Thomas B. Finan, Attorney General of Maryland, argued the cause for the State of Maryland, as amicus curiae, urging affirmance in No. 119. With him on the brief were James P. Garland and Robert F. Sweeney, Assistant Attorneys General of Maryland. Richmond M. Flowers, Attorney General of Alabama, Robert Pickrell, Attorney General of Arizona, Bruce Bennett, Attorney General of Arkansas, Richard W. Ervin, Attorney General of Florida, Eugene Cook, Attorney General of Georgia, Allan G. Shepard, Attorney General of Idaho, William M. Ferguson, Attorney General of Kansas, Jack P. F. Gremillion, Attorney General of Louisiana, Frank E. Hancock, Attorney General of Maine, Joe T. Patterson, Attorney General of Mississippi, William Maynard, Attorney General of New Hampshire, Arthur J. Sills, Attorney General of New Jersey, Earl E. Hartley, Attorney General of New Mexico, Thomas Wade Bruton, Attorney General of North Carolina, J. Joseph Nugent, Attorney General of Rhode Island, Daniel R. McLeod, Attorney General of South Carolina, Frank R. Farrar, Attorney General of South Dakota, and George F. McCanless, Attorney General of Tennessee, joined in the brief on behalf of their respective States, as amici curiae.

John D. Killian III, Deputy Attorney General of Pennsylvania, and Philip H. Ward III argued the cause for appellants in No. 142. With them on the brief were David Stahl, Attorney General of Pennsylvania, Percival R. Rieder and C. Brewster Rhoads. Francis B. Burch and George W. Baker, Jr. argued the cause for respondents in No. 119. With them on the brief were Nelson B. Seidman and Philip Z. Altfeld.

The US Supreme Court reviewed the two cases together because they both presented "the issues in the context of state action requiring that schools begin each day with readings from the Bible."

"In the relationship between man and religion, the State is firmly committed to a position of neutrality."

"The wholesome 'neutrality' 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.

[T]o withstand the strictures of the Establishment Clause there 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... 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...

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.

The Supreme Court affirmed the judgment of the District Court in Abington and reversed the judgment of the Court of Appeals in Murray.

Justice Vote: 8 Pro vs. 1 Con
  • Clark, T. Pro (Wrote majority opinion)
  • White, B.  Pro (Joined majority opinion) 
  • Warren, E.  Pro (Joined majority opinion) 
  • Harlan, J.  Pro (Joined majority opinion) 
  • Douglas, W. Pro (Wrote concurring opinion)
  • Brennan, W. Pro (Wrote concurring opinion)
  • Goldberg, A. Pro (Wrote concurring opinion)
  • Harlan, J. Pro (Joined Goldberg's concurring opinion)
  • Stewart P. Con (Wrote dissenting opinion)

The ACLU, as Counsel of record, urged affirmance in Abington and reversal in Murray of the District Court and Court of Appeals' Judgments; the US Supreme Court affirmed Abington and reversed Murray in an 8-1 vote, giving the ACLU an apparent win.

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