This is the fifth in a series of 10 special Politics Daily columns to complement C-SPAN radio's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in cases that shaped the laws that have shaped our lives in countless ways. The fifth and sixth featured tapes in the C-SPAN series, orals argument in Abington School District v. Schempp (1963), focus upon the constitutionality of prayer in public school. They will be heard on C-SPAN Radio
at 6 p.m. ET the next two Saturday nights, Oct. 30 and Nov. 6.
It has been nearly two generations now since the United States Supreme Court ruled 8-1 in Abington School District v. Schempp
that there was no room under the First Amendment's "Establishment Clause
" for Bible study in public school classrooms. That means that 48 years' worth of students and classes have come and gone without ever having witnessed or experienced the practice, once common all across the country. And yet despite this disconnection from history, the issue of prayer in public school always seems to be with us. Indeed, in the immediate wake of the Schempp
ruling, there were approximately 150 proposed amendments to the Constitution seeking to overturn it.
Starting in 1959, and based upon a state law, public school students in Pennsylvania were required to read at least 10 Bible verses each day in class, followed by a recitation of the Lord's Prayer. The sessions took place every morning, early, when the students were in their homerooms. Students who wished to be excused from the exercise were required to have a note from their parents. As a family, the Schempps objected to the law and their three children sued the school district under the First Amendment. The Bible readings and Lord's Prayer violated their rights, they claimed, to be free from state-sponsored Christian theology.
State officials argued to the justices that there was nothing unconstitutional about the prayers -- that they didn't break down the wall between church and state -- because the daily readings reflected "in some ways the religious origins of the country." Reading the Bible was a moral lesson, state lawyers argued, and thus acceptable for public school. Both the trial court and a lower federal appeals court disagreed, striking down the law. Phillip Ward, attorney for the school district, told the justices: "The tradition isn't trying to teach anybody anything. The tradition isn't requiring a person to believe or disbelieve. The tradition has secular value; it has a purpose, like the Sunday closing." It's an argument that is familiar to anyone who has followed the modern jurisprudence
over public displays of the Ten Commandments.
The Supreme Court didn't buy Pennsylvania's argument. Expanding upon its ruling in Engel v. Vitale
(1962), which had banned a "to whom it may concern" prayer in New York schools, the justices ruled the law couldn't promote one religion to the exclusion of others. Here is the language of Justice Tom Clark's
: "The place of religion in our society is an exalted one, achieved through a long tradition of reliance 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 of neutrality." This neutrality, the court's majority found, required the absence of mandatory Bible study and the recitation of the Lord's Prayer each day.
Justice William Brennan, a devout Catholic, concurred. "In my judgment, the First Amendment forbids the State to inhibit that freedom of choice by diminishing the attractiveness of either alternative -- either by restricting the liberty of the private schools to inculcate whatever values they wish, or by jeopardizing the freedom of the public schools from private or sectarian pressures. The choice between these very different forms of education is one very much like the choice of whether or not to worship -- which our Constitution leaves to the individual parent. It is no proper function of the state or local government to influence or restrict that election."
Justice Potter Stewart issued an angry dissent. He wanted to send the case back down to the lower courts to flesh out certain facts he deemed relevant. He wrote: "The dangers both to government and to religion inherent in official support of instruction in the tenets of various religious sects are absent in the present cases, which involve only a reading from the Bible unaccompanied by comments which might otherwise constitute instruction. Indeed, since, from all that appears in either record, any teacher who does not wish to do so is free not to participate, it cannot even be contended that some infinitesimal part of the salaries paid by the State are made contingent upon the performance of a religious function."
Listening to the arguments, from February 1963, you can hear the emotion in the tone of the lawyers making their argument. For example, when Henry Sawyer, representing the Schempp family, made his case against Bible readings, he did so in nearly Biblical terms. He told the justices: "You cannot separate the moral leaven from the religious leaven in the Bible. I think the two go absolutely together. And it teaches -- they say it doesn't proselytize -- it teaches, the book teaches from the opening chapter of Genesis to the last chapter of Revelations. . . . From the very opening it says, 'And lo, the Spirit was upon the waters.' "
Listen, too, for a fascinating (and cringe-worthy) discussion about the Koran and "Mohammeds" and for the tone in Justice Hugo Black's voice when he said to attorney Ward: "The Bible is a religious book, the prayers in it are religious prayers, its writings have been accepted through the centuries as religious" in nature. No matter where you stand on the issue of prayer in public school, the audiotape of this argument is indeed a wonderful contemporary glimpse, a candid snapshot, into the way Americans perceived the intersection of government and religion nearly 50 years ago.