“Have To” History: McCollum v. Board of Education (1948)

March 19, 2020June 4, 2023 ~ Blue Cereal

Should I Pray or Should I Go?

Three Big Things:

1. McCollum v. Board of Education was the first Supreme Court case to test the idea of “released time” during the school day for religious instruction by outside groups or religious leaders.

2. The Court’s four different written opinions demonstrate the complexity of applying absolutist rhetoric (“wall of separation”) to specific circumstances without trampling on the rights of local decision-makers.

3. The issues debated in McCollum reappeared in various iterations long after this particular decision and still come up in only slightly modified forms today.

Background

The Board of Education in Champaign, Illinois, allowed a local religious organization consisting of clergy and other volunteers to come into their public schools and teach religion classes during the school day. The organization, calling itself the Champaign Council on Religious Education, offered Protestant, Catholic, or Jewish options. The classes were “voluntary,” and any expenses were paid for by the Council, not the school district or parents.

This wasn’t unique in the world of local public schools. It even had a name: “released time.” The implication was that students were temporarily “released” from school to attend “voluntary” religious classes. In practice, they had two choices – attend the religious classes, or go to whatever room or part of the school was designated for non-participants.

Vashti McCollum, an atheist with a cool name, objected to this system on several bases. Primarily, she argued, this use of public school facilities during the school day amounted to “Establishment,” thus violating the very first clause of the First Amendment. In practice, she said, students like her eight-year old son, James, faced substantial pressure from teachers and administration to attend. He was eventually forced to sit alone in the hallway while other students were being indoctrinated and endured mockery and ostracism from his peers with the tacit sanction of his teachers and other school staff. Furthermore, McCollum claimed, the power of the Council and local School Superintendent to pick and choose which religious leaders were included amounted to government censorship of some religious views in favor of others.

McCollum’s case reached the Supreme Court in 1947, the same year Everson v. Board of Education was decided. In Everson, the Court determined that state assistance to parents whose children rode public busses to school was fine, even though that assistance included families utilizing parochial schools. Everson was the first case of its kind to reach the Court and involved difficult questions about what the “wall of separation” meant in practice when applied to state and local government via the 14th Amendment. Plus, it hadn’t been decided at the time McCollum first began pursuing her case in the courts. It’s unlikely she or anyone else involved had even heard of it yet.

In other words, McCollum was stepping out with absolutely no reason to think she had a chance of winning and no real precedent on which to build her case. Her demands in the name of “separation of church and state,” which initially went well-beyond the “released time” issue, were inflammatory and unpopular. At the same time, she was seeking no damages and wasn’t insisting that anyone be fired or go to jail. What she asked of the courts was a writ of mandamus –an order from the bench to government officials to fulfill their duties properly and fix a mistake they were making, whether as an abuse of power or simply because they didn’t know any better. (The reason “writ of mandamus” sounds like something from Harry Potter is because the Latin root hints at its English offspring in words like “mandatory” or “command.”)

The McCollum family endured the usual pushback whenever community religious values were challenged – she was fired from her job for vaguely-defined reasons, they were physically threatened and verbally harassed, and their home periodically pelted with rocks and garbage. The family pet – a cat, in this case – was also killed in retaliation for her efforts.

At least those “released time” classes were doing a great job inculcating the values of their approved faiths.

When McCollum’s case reached the Supreme Court, a supportive amicus curiae (“friend of the court”) brief was filed by none other than the Baptist Joint Committee for Religious Liberty. This group was in some ways the intellectual and spiritual descendants of those whacky Danbury Baptists who a century-and-a-half before had written to President Thomas Jefferson about the need for protection from the State. Jefferson’s response coined the phrase “a wall of separation,” which quickly became canon in interpreting the two church-state clauses of the First Amendment.

So that was nice.

The Decision(s)

The Court struck down the “released time” program and any similar programs in which schools set aside class time for religious instruction. Although the classes were technically voluntary and led by a mix of Protestant, Catholic, and Jewish clergy and other volunteers, the use of school facilities during school hours violated the Establishment Clause of the First Amendment as applied to the states by the Fourteenth.

The case prompted no fewer than four distinct written opinions – the Majority Opinion, penned by Justice Hugo L. Black, two separate concurring opinions, written by Justice Felix Frankfurter (joined by two other justices) and Justice Robert J. Jackson respectively, and a dissent from Justice Stanley F. Reed. The variety of opinions expressed, even among those supporting the decision, offer rich insight into the different facets of this and subsequent related cases. The issues with which they wrestle will become familiar and appear in various forms in dozens of subsequent church-school cases.

The Majority Opinion

Justice Hugo Black, writing for the majority, focused on the core issue of “released time” as a violation of the Establishment Clause:

The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools… Classes were conducted in the regular classrooms of the school building. Students who did not choose to take the religious instruction were not released from public school duties; they were required to leave their classrooms and go to some other place in the school building for pursuit of their secular studies. On the other hand, students who were released from secular study for the religious instructions were required to be present at the religious classes. Reports of their presence or absence were to be made to their secular teachers.
The foregoing facts, without reference to others that appear in the record, show the use of tax supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education… This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith…

He cited Everson by way of support, then added what would become something of a requisite disclaimer in subsequent church-school separation cases:

To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings…
{T}he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.

Frankfurter’s Concurrence

Justice Felix Frankfurter’s tone as he introduced his concurring thoughts could be perceived as a tad, well… snippy. If one weren’t paying attention, it would be easy to assume he was setting up a scathing dissent rather than a supportive addendum:

We are all agreed that the First and the Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an “established church.” But agreement, in the abstract, that the First Amendment was designed to erect a “wall of separation between church and State” does not preclude a clash of views as to what the wall separates.
Involved is not only the Constitutional principle, but the implications of judicial review in its enforcement. Accommodation of legislative freedom and Constitutional limitations upon that freedom cannot be achieved by a mere phrase. We cannot illuminatingly apply the “wall of separation” metaphor until we have considered the relevant history of religious education in America, the place of the “released time” movement in that history, and its precise manifestation in the case before us.

Justice Frankfurter went on to anchor his concurring opinion in just such an extended historical analysis and application. He even quoted President Ulysses S. Grant. How often does THAT happen?

His primary argument was that this was not a new issue; the idea that public education should remain unencumbered with shifting local religious allegiances was not part of some radical new judicial activism. “Released time” was from the beginning largely an excuse to leverage the power of the state to compel public school attendance into an opportunity for indoctrinating young people who simply weren’t interested enough to listen otherwise.

Jackson’s Concurrence

Justice Robert H. Jackson, too, offered a supporting opinion which somehow didn’t sound entirely supportive. He agreed with the Court’s decision except for a few minor things, such as his uncertainty they’d established their requisite jurisdiction over the case to begin with. Jackson simply couldn’t bring himself to embrace the suggestion that the First Amendment was intended to provide the sort of relief sought by the McCollums:

When a person is required to submit to some religious rite or instruction or is deprived or threatened with deprivation of his freedom for resisting such unconstitutional requirement, {this Court} may then set him free or enjoin his prosecution. Typical of such cases was West Virginia State Board of Education v. Barnette (1943). There, penalties were threatened against both parent and child for refusal of the latter to perform a compulsory ritual which offended his convictions…
But here, complainant’s son may join religious classes if he chooses and if his parents so request, or he may stay out of them. The complaint is that, when others join and he does not, it sets him apart as a dissenter, which is humiliating. Even admitting this to be true, it may be doubted whether the Constitution, which, of course, protects the right to dissent, can be construed also to protect one from the embarrassment that always attends nonconformity, whether in religion, politics, behavior or dress…

He went on to express concern that the Court did not specifically reject the wide variety of other complaints and demands brought by McCollum as part of her case. Even granting that the “released time” thing is a no-no, he didn’t like the implication that she or anyone else with their own list of religious slights or other offenses taken might conceivably cite the case by way of demanding judicial protection from pretty much anything that hurt their little feelings or offended their bizarre worldviews.

He put it a bit more jurisprudentially than that, but not by much.

Reed’s Dissent

Justice Stanley F. Reed, the sole dissenter in the case, had a fairly straightforward explanation of his primary objection to the Court’s ruling:

I find it difficult to extract from the opinions any conclusion as to what it is in the Champaign plan that is unconstitutional. Is it the use of school buildings for religious instruction; the release of pupils by the schools for religious instruction during school hours; the so-called assistance by teachers in handing out the request cards to pupils, in keeping lists of them for release and records of their attendance; or the action of the principals in arranging an opportunity for the classes and the appearance of the Council’s instructors?
None of the reversing opinions say whether the purpose of the Champaign plan for religious instruction during school hours is unconstitutional, or whether it is some ingredient used in or omitted from the formula that makes the plan unconstitutional.

In other words, he found the majority’s explanation of why “released time” programs were unconstitutional unconvincing primarily because the majority hadn’t explained what made them constitutional.

Whether his criticism was justified in this particular case or not, the principle he evoked is sound. Clarity as to the Court’s reasoning in any decision is essential if those impacted are to have any idea what is or is not acceptable going forward. Lower courts are expected to look to the Supreme Court for guidance in deciding related cases in their states or federal districts – something difficult to do if the explanation really were, in essence, “it just feels unconstitutional.”

Reed echoed Justice Frankfurter in his concern that the Court may have been leaning too heavily on a catchy phrase and not heavily enough on the history and context behind it:

{T}he “wall of separation between church and State” that Mr. Jefferson built at the University which he founded did not exclude religious education from that school. The difference between the generality of his statements on the separation of church and state and the specificity of his conclusions on education are considerable. A rule of law should not be drawn from a figure of speech.

Like Justice Jackson, Justice Reed was not persuaded that a child’s humiliation, even when school officials were culpable, was sufficient to trigger constitutional review:
It seems obvious that the action of the School Board in permitting religious education in certain grades of the schools by all faiths did not prohibit the free exercise of religion {by students of other faiths or beliefs}. Even assuming that certain children who did not elect to take instruction are embarrassed to remain outside of the classes, one can hardly speak of that embarrassment as a prohibition against the free exercise of religion.

Reed’s dissent concludes with an argument which would resurface in various forms almost every time public schools and proselytization had a spat in following decades:

The prohibition of enactments respecting the establishment of religion do not bar every friendly gesture between church and state. It is not an absolute prohibition against every conceivable situation where the two may work together, any more than the other provisions of the First Amendment — free speech, free press — are absolutes. If abuses occur, such as the use of the instruction hour for sectarian purposes, I have no doubt… that Illinois will promptly correct them…
This Court cannot be too cautious in upsetting practices embedded in our society by many years of experience. A state is entitled to have great leeway in its legislation when dealing with the important social problems of its population… Devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with accepted habits of our people.

Aftermath

Four short years later, the Court would hear Zorach v. Clauson (1952), a New York case quite similar to McCollum with only one notable difference – students who wished to participate in religious instruction during the school day were “released” to leave school grounds and report to religious training elsewhere. The Court determined in a 6 – 3 decision as perfectly constitutional. The Majority Opinion, written by Justice William O. Douglas (who’d sided with the majority in McCollum), strongly echoed Justice Reed’s dissent from four years before.

Clearly, the Court was still working out the details of this “wall of separation.”

The Jehovah’s Witnesses Flag Cases (Part Two)

March 16, 2020June 4, 2023 ~ Blue Cereal

I’ve started putting together information and drafts for something which may or may not be titled “Have To” History: A Wall of Separation (Public School Edition). Call me wacky, but I find this stuff fascinating.

Below and in Part One, I’m sharing the drafts of two of earliest cases likely to be included. Both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish. In the second, the Court completely reversed itself only three years after the first – so that was unexpected.

Recap of the Story So Far…

Jehovah’s Witnesses took (and take) literally the Bible’s exhortation to “have no other gods before me.” After experiencing persecution in Germany for not pledging their allegiance to the Fuhrer, leaders of the Witnesses discouraged saluting or reciting oaths to any national symbol – including the American flag. Many public schools in the U.S. required students to salute the American flag and say the Pledge of Allegiance, hoping this would foster patriotism and a sense of civic duty and community in the youth. When young Jehovah’s Witnesses refused, they were punished with expulsion.

The Jehovah’s Witnesses insisted this was a violation of religious liberty. In 1940, the Supreme Court disagreed. “Sorry this offends your beliefs,” the Court ruled, “but national unity is a valid goal of schooling and the law didn’t target your people on purpose.” (I’m paraphrasing.)

Part Two: West Virginia State Board of Education v. Barnette (1943)

After the Supreme Court’s decision in Minersville School District v. Gobitis (1940), harassment and violence towards Jehovah’s Witnesses surged dramatically across the United States. Many felt validated and encouraged by the Court’s decision, which in their mind had essentially prioritized loyalty and being a good American over freedom of religion, speech, or association. It didn’t help that the U.S. entered World War II shortly thereafter, making patriotism and loyalty towards one’s nation and the flag representing it even more essential in the minds of many and any deviance not merely suspect, but dangerous.

Only a few decades before Gobitis was the first “Red Scare,” in which all things foreign or strange were suspected of undermining the American way of life and required hostile, or even violent response. A decade after the Court’s reversal in Barnette, Congress would launch hearings into the “Communist infiltration” of government, publishing, and the entertainment industry, resulting in hundreds – possibly thousands – of loyal citizens losing their livelihoods and enduring ostracism by friends and neighbors.

In other words, being the “other” in the 20th century wasn’t simply a matter of some suspicious looks or hostile tweets. It meant you weren’t safe just going about your business, no matter how hard you worked, how many taxes you paid, or how devoted you were to your faith and your family. The Jehovah’s Witnesses weren’t Communists, of course – but they were weird and often unpleasant. So… close enough.

A Free, Public Re-Education

Perhaps not surprisingly, persecution only strengthened the resolve of the Jehovah’s Witnesses. Their kids still to have other gods before the Big One. It was a mere three years before almost the exact same case as Gobitis came before the High Court once again. This time, the results would be a tiny bit different.

Following the Court’s decision in Gobitis, West Virginia and other states upped their citizenship game and began requiring more intensive public school courses in history, civics, and Constitutional studies. They wanted there to be no doubt about the meaning of traditional American values, like “recite what we tell you and salute the symbols we choose or pay the price!” The West Virginia Board of Education issued a statewide resolution requiring the Pledge and flag salutes at all public school events; refusal to participate would be considered “insubordination” and dealt with harshly. The statute quoted extensively from the Majority Opinion in Gobitis by way of justification.

So… Ouch.

West Virginia and other states did allow some modification of the stiff-arm salute now associated with the Nazi Party. (Presumably, it was OK to behave like fascists as long as one used a slightly different arm motion while so doing.) They also tweaked the rules concerning expulsion. Children not saluting the flag and saying the Pledge would be sent home, after which parents would be prosecuted for not having them in school.

Think what you like about mandatory oaths of fealty, this is a nice touch, statutorily-speaking. It rubs salt into the stripes on their backs, but in a “What? We’re just trying to help!” kind-of-way.

Marie and Gathie Barnette were Jehovah’s Witnesses who quietly refused to swear allegiance to anyone or anything other than the Lord their God. They were expelled, and once again the Witnesses began legal proceedings, despite the Court’s decision only a few years before.

Cases like the Barnettes’s don’t magically appear before the Supreme Court. They’re filed in the appropriate local court first, then potentially appealed up through the hierarchy. Barnette v. West Virginia State Board of Education (the names are reversed because initially the Barnettes were the plaintiffs) began in the U.S. District Court for the Southern District of West Virginia and was heard by a three-judge panel in 1942.

District Courts are generally expected to follow the precedents set by those up the food chain – the Supreme Court or, lacking clarity from D.C., the closest District Court of Appeals. There are many cases involving issues not specifically addressed by the higher courts, of course, and from time to time you’ll get a rogue judge or two who go against the grain, but normally a case like Barnette would have been fairly straightforward, given its similarity to Gobitis a few short years prior. Clearly the Court would decide for the schools and everyone could go home.

Only they didn’t.

“Ordinarily We Would Feel Constrained…”

In a rather bold move, the three-judge court not only decided in favor of the Barnettes, but made no effort to justify their decision by pretending this case was in some way different than its predecessor. Instead, they simply explained their reasoning based on developments since Gobitis, along with their own interpretation of the law and the Bill of Rights. Taken together, it’s a written opinion as eloquent as anything coming from the Supremes in those days:

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other justices in a special dissenting opinion in Jones v. City of Opelika…
There is, of course, nothing improper in requiring a flag salute in the schools. On the contrary, we regard it as a highly desirable ceremony calculated to inspire in the pupils a proper love of country and reverence for its institutions. And, from our point of view, we see nothing in the salute which could reasonably be held a violation of any of the commandments in the Bible or of any of the duties owing by man to his Maker. But this is not the question before us…
Courts may decide whether the public welfare is jeopardized by acts done or omitted because of religious belief; but they have nothing to do with determining the reasonableness of the belief. That is necessarily a matter of individual conscience. There is hardly a group of religious people to be found in the world who do not hold to beliefs and regard practices as important which seem utterly foolish and lacking in reason to others equally wise and religious; and for the courts to attempt to distinguish between religious beliefs or practices on the ground that they are reasonable or unreasonable would be for them to embark upon a hopeless undertaking and one which would inevitably result in the end of religious liberty.
There is not a religious persecution in history that was not justified in the eyes of those engaging in it on the ground that it was reasonable and right and that the persons whose practices were suppressed were guilty of stubborn folly hurtful to the general welfare…

That last bit echoes Justice Stone’s dissent in Gobitis. Justice Robert H. Jackson, who will write the Majority Opinion in Barnette, explores the theme from a different angle, but just as clearly.

Nine Justices, One Hundred and Eighty Degrees

The State appealed the case up the ladder (hence the reversal in the order of the names) and the Supreme Court was given an opportunity to try again. This time, they ruled 6 – 3 in favor of the Jehovah’s Witnesses. The majority focused less on religious freedom for Jehovah’s Witnesses and more on freedom of speech (or lack thereof) in general. It’s not just that children of certain faiths should be free to respectfully abstain from public recitations of mandatory patriotism, they argued – it was bigger than that. There are certain core liberties which should be protected for everyone, regardless of the specific belief system or point of view involved:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

It was important to the decision that the children’s abstention didn’t interfere with the rights of those around them to go right ahead and say it and wasn’t disruptive in and of itself:

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so.
Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual…

The non-disruptive element matters in this context because “disruption of the learning environment” is often sufficient to allow authorities to restrict behaviors in a school setting which would typically be protected in the larger adult world. (A generation later, the non-disruptive impact of black armbands worn to protest the Vietnam War will be central to the Court’s protection free speech for high school students in Tinker v. Des Moines, 1969.)

In essence, the Court supported the concept of encouraging patriotism and national unity; it rejected the suggestion by the State that the best way to do this was mandatory rituals – especially when they violated the conscience of those involved.

Aftermath

Barnette was a turning point for jurisprudence involving the freedoms enshrined in the Bill of Rights. Initially, the first ten Amendments were added to the new Constitution as limits on what the federal government could do or demand of individuals. While state constitutions might offer similar protections for speech, religion, etc., there was no national standard for such things until the first half of the 20th century, when the Court began utilizing the 14th Amendment (ratified just after the Civil War, in 1868) to apply the protections and ideals of the Bill of Rights to the relationship between citizens and state or local government as well.

Even then, the Court often drew a broad distinction between protecting belief and allowing religiously-driven behavior which violated state or local law. This “belief-action doctrine” was most clearly expressed in Reynolds v. United States (1878), a case involving the 19th century’s most vilified religious group, the Church of Jesus Christ of Latter Day Saints –more popularly known as the Mormons.

At issue was the practice of polygamy, and whether or not one’s sincerely held religious convictions could override man’s prohibitions against a practice steeped in history, practiced peacefully among consenting adults, and harming no one. This being the U.S., the answer was inevitable: of course not, because eewwwww!

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices…
Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

The basic principle still holds – there are laws and expectations ever citizen must heed, regardless of belief system or personal creed. After Barnette, though, sincerely held religious convictions gained substantial ground in terms of what they could or couldn’t be used to justify, both in the world of public education and beyond. Also magnified was the idea that fundamental freedoms like those guaranteed in the Bill of Rights shouldn’t have to wait on legislatures or the next election to find protection – an approach which will be applied to full effect by the Warren Court of the 1950s and 1960s.

The Court’s reversal in Barnette didn’t eliminate suspicion or violence towards Jehovah’s Witnesses, but it did at least remove the illusion of federal sanction for such actions, which dropped in both number and severity. America had other things to worry about, and over time the Witnesses started making some effort to be less aggressive and alienating whenever possible to do so without compromising their beliefs.

And in case you’re wondering, they still don’t say pledge their allegiance to anyone’s flag. Nor do they have to.

The Jehovah’s Witnesses Flag Cases (Part One)

March 12, 2020June 4, 2023 ~ Blue Cereal

Several years ago, my wife and I moved to northern Indiana from Oklahoma and I started a job at a new school. Day One, first hour, I was about 30 seconds into introducing our opening activity when I was interrupted by announcements via school intercom. “Please stand for the Pledge of Allegiance…”

I wasn’t expecting it, but I figured the routine was pretty much the same everywhere. Hand on heart, I faced the tiny flag hanging in my room and began reciting right along with the tiny anonymous voice on the speaker – “I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA—”

I wasn’t three words in when I realized that while most of my students had stood, half were barely mumbling the Pledge while the rest weren’t saying out aloud at all. You know that thing in church where you mouth the words to the hymns you don’t know? It was like that, only I’m sure they knew it – this just wasn’t a thing they did. Not with any enthusiasm, anyway. Except for the NEW GUY, apparently.

At that point, of course, there were only two options. Stop – or at least dial it WAY back – on my first day in a new school in front of a new class and baptize my opening day in awkwardness and stifled embarrassment, or… OWN IT. So baby, I OWNED IT.

“AND TO THE REPUBLIC FOR WHICH IT STANDS – ONE NATION, UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL.”

And then I went on with my lesson as if this were the most normal thing in the world. The next day, I did the exact same thing – loud and confident, as if I were the most patriotic individual in the state. Never once did anyone question my enthusiasm or belittle my volume. Never once did I think I could risk dialing it back a bit, lest I cast retroactive doubt and awkwardness over everything I’d done since.

I’m not suggesting this was in any way rational. But people rarely are.

“Have To” History: Supreme Court Cases

I recently finished “Have To” History: Landmark Supreme Court Cases, of which I’m quite proud. I’ve started putting together information and drafts for a second volume, which may or may not be titled something like “Have To” History: A Wall of Separation (Public School Edition).

I’m still working out the title. And the format. And the content. But for whatever reason, I do love me some Supreme Court cases – even the written opinions. Below and in my next post, I’m sharing rough drafts of two of the earliest cases likely to be included. They reached the Supreme Court only three years apart, and both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish.

Oh, and the second case completely reversed everything the Court said in the first. So that was wacky, jurisprudentially-speaking.

Here’s Part One…

One Nation, Quite Divisible, With Liberty and Justice for Those Who Cooperate

Arguably no religious group faced more persecution and hostility in the 20th century United States than the Jehovah’s Witnesses. They proselytized aggressively in the streets and went door-to-door offering copies of The Watchtower and wanting to talk about the “end times.” They were not a group known for political engagement. They didn’t usually vote, most rejected Social Security numbers as a “mark of the beast,” and leadership discouraged serving on juries or other forms of civic participation. Believers were expected to work for a living, obey the law, and “render unto Caesar” – as long as it did not explicitly conflict with the Word of God.

Despite all this, the Jehovah’s Witnesses have arguably done more than any other religious group to promote freedom of religion and freedom of speech in the U.S. To date, they’ve been involved in something like two dozen U.S. Supreme Court cases, almost all of them concerned with First Amendment protections. The vast majority occurred in the 1930s and 1940s.

In the waning years of the Great Depression, as Europe stumbled towards war, patriotism in the United States became mandatory in all but name. Many states passed laws requiring all public school students to salute the American Flag and say the Pledge of Allegiance each day, apparently assuming that nothing promotes heartfelt commitment like mandatory obeisance. If you’ve seen pictures from the era, you may notice that the standard salute looked different than it does today. Typically, it involved the right arm extended forward and upwards at a slight degree towards the flag as participants chanted in unison their devotion to the collective.

In Nazi Germany, a very similar salute was required of all good citizens, although in the faterland, nationalism was personified in their new Chancellor, Adolph Hitler, rather than a mere flag. Jehovah’s Witnesses in Germany refused to salute, citing the Second Commandment – “Thou shalt have no other gods before me” – as well as several other Old Testament passages suggesting that the Lord Their God was not a fan of split allegiances. Joseph F. Rutherford, who succeeded Witnesses founder and leader Charles Taze after his death in 1916, suggested American Jehovah’s Witnesses avoid what they saw as similar oaths back home.

German Jehovah’s Witnesses would soon be sent to their deaths in various Nazi concentration camps, while their American counterparts were merely mocked, harassed, accused, and periodically assaulted. The official eruption of World War II in 1939 only increased these tensions, despite the U.S. managing to avoid direct involvement for the first few years. Meanwhile, some Jehovah’s Witnesses schoolchildren who took their beliefs a bit too seriously for the comfort of the masses became the focal point for what had heretofore been scattered and inconsistent suspicion and hostility.

Minersville School District v. Gobitis (1940)

Lillian Gobitas (the name was later misspelled in court records), age 12, and her brother Billy, age 10, refused to participate in the Pledge of Allegiance. They believed the Bible forbid such direct promises of obedience to anything or anyone other than the Lord God, and were expelled from school as a result. Their case eventually reached the Supreme Court, which determined in an 8 – 1 vote that the school had the right to require the Pledge as part of promoting good citizenship. It wasn’t a violation of Constitutional rights because the requirement didn’t target their religion intentionally.

From the Majority Opinion by Justice Felix Frankfurter:

The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization… The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution…
The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even were we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality… But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiances.

Justice Harlan Stone wrote one of the most famous dissenting opinions in Court history in response. Several of his points would be revisited when a new majority overturned Minersville a mere three years later. Behold the power of a well-penned dissent:

The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions…
History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities…
The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents’ religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion.

The Red, White, Black & Blue

While there were vocal critics of the Gobitis decision, especially in the press, many Americans took it as federal validation of whatever they wished to do to Jehovah’s Witnesses in their area. Violence against believers surged dramatically, often times with local law enforcement standing by but refusing to interfere – no doubt out of some degree of personal prejudice, but now with the perceived sanction of the nation’s highest court.

We like to imagine the Supreme Court as remaining safely beyond the pale of popular opinion or social forces, but they are at times quite human and may even read the news from time to time. The makeup of the Court evolves as well, and shortly after the Gobitis decision, it changed rather dramatically. Chief Justice Charles E. Hughes retired, as did Justice McReynolds. Justice Stone, author of the sole dissent in Gobitis, was promoted to Chief Justice, and Justices Robert Jackson and Wiley Rutledge joined the Court.

Jones v. City of Opelika was a case first considered by the Court in 1941 and once again involved Jehovah’s Witnesses. The issue was whether or not the State can charge “licensing fees” on religious books and pamphlets. The Court initially determined that they could. Justices Hugo Black, William Douglas, and Francis Murphy – all of whom had voted with the majority in Gobitis – added a dissent in which they repudiated their previous decision:

The opinion of the Court {in Jones v. Opelika} sanctions a device which, in our opinion, suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis (1940) took against the same religious minority, and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.
Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities, however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.

Jones was reconsidered the following session, and in 1942 the Court reversed itself on this Neo-Stamp Act. Combined with the comments of Black, Douglas, and Murphy, it was clear that the winds of jurisprudential change were blowing – and briskly.

As it turned out, those little Jehovah’s Witnesses kids still refused to have other gods before the Big One. It was a mere three years before almost the exact same “Heil ‘Merica!” case came before the High Court once again. The second time, the results would be a tiny bit different.

“Have To” History: United States vs. Nixon (1974)

January 8, 2020July 5, 2023 ~ Blue Cereal

NOTE: I’ve finally completed “Have To” History: Landmark Supreme Court Cases. The following is an excerpt from this work, inspired only by my love of sharing and having nothing to do with current events. (We work very hard in history education to make sure there’s as little connection as possible between what we cover in class and what’s happening in the real world around us. Otherwise – phone calls!)

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About U.S. v. Nixon (1974)

Three Big Things:

1. In 1972, five men working for the Nixon Administration were caught breaking into Democratic National Headquarters. Investigations revealed much wider-spread wrongdoing by the White House – and efforts by the President himself to cover it all up.

2. When it was revealed that the President recorded his conversations, the tapes were subpoenaed by Congress; Nixon refused, claiming “executive privilege.”

3. The Supreme Court ruled against the President, who resigned to avoid impeachment. “Watergate” became shorthand for all things corrupt, especially in reference to major political scandals.

Background

President Nixon was a very naughty man. Or, at least, he did some very naughty things (and then lied about it).

Richard M. Nixon began his political career in the House of Representatives, where he served the 12^th District of California from 1947 – 1950. In 1950 he successfully ran for one of the state’s two Senate seats, which he held until asked to be the running mate of Dwight D. Eisenhower in the Presidential Election of 1952. While Eisenhower focused on the positives – what he wanted to do for the country – Nixon handled the negatives, attacking opponents and criticizing Democratic policies. It was a successful strategy; Nixon became Vice President in 1953.

Nixon’s involvement in the Eisenhower Administration was much more active than had been typical with prior VPs. He chaired security meetings when the President was absent and interacted with foreign leaders around the world. Nixon was virulently anti-Communist, but surprisingly diplomatic and seemingly unflappable in the face of protests, violence, or other challenges from detractors. He served under President Eisenhower for eight years.

Nixon attempted to ride this momentum to his own administration in 1960 but lost to John F. Kennedy in one of the most famous elections of the 20^th century. JFK was young, optimistic, handsome, and Catholic, while Nixon was, well… himself. Nixon next sought the governorship of California in 1962, but again fell short. During his concession speech, Nixon’s frustration boiled over as he told the reporters that they wouldn’t “have Nixon to kick around anymore.” He was done with politics.

He probably meant it at the time, but it didn’t last long. Six short years later, in 1968, he was elected President.

President Nixon

By 1968, the Vietnam War was beginning to look to many Americans like nightmarish quagmire we remember today. The Civil Rights movement was in full swing but faced violence and ugly backlash with every success. JFK had been assassinated in 1963, Malcolm X in 1965, MLK in April of 1968, and Robert Kennedy – on his way to becoming the Democratic nominee for President – in June. These were days of sex and hippies and drugs and war protests, and while pop culture too often overlooks the many folks simply going to school or work and trying to live their daily lives as best they could, the nation was arguably in its most self-destructive phase since the Civil War.

When times are good, Americans want freedom. When things turn chaotic and dark, however, most people want structure. Decency. A return to “normalcy.” It was out of such times that Nixon re-emerged, promising to restore law and order. He appealed to the “silent majority” he believed still knew how to be proper Americans. His “southern strategy” played on white resentment of black progress and used thinly veiled nativism to secure the support of conservatives and a shaken middle class in whatever part of the country they resided.

It seems to have worked. Nixon won by a substantial majority of electoral votes and the Republican Party picked up seats in both the House and the Senate.

Nixon’s victory did nothing to reduce his hostility towards the press, however. He blamed them for Kennedy’s victory eight years before. He was angry over the 1971 release of the Pentagon Papers which proved that President Lyndon B. Johnson had lied about the Vietnam War – not just a little, but a LOT, and not just to the public, but to Congress. (It wasn’t that Nixon felt particularly protective of Johnson; it was just inconvenient to deal with the resulting skepticism and heightened scrutiny of the office – particularly when trying to do shady, illegal things.)

It wasn’t just the press. He was paranoid about the Democratic Party, war protestors, and his own place in history as well. A covert group of trusted minions known as CREEP (the Committee to Re-Elect the President) engaged in a variety of illegal activities attempting to thwart Nixon’s many perceived enemies. They broke into offices, stole secrets, infiltrated opposition groups – whatever it took to enforce unquestioned loyalty with little regard for either decency or the law. As Nixon would later tell interviewer David Frost, “when the President does it, that means it’s not illegal.”

Clearly these were different times. We’re fortunate to have evolved so far beyond such things.

The Watergate Break-In

In June of 1972, a group of men known as “The Plumbers,” who worked for CREEP, broke into the Watergate Office Building which housed, among other things, Democratic National Committee Headquarters. It’s not clear specifically what they hoped to accomplish, but it seemed they might be looking to bug some phones and steal a few files. The break-in was reported the next day in the press, but considered relatively minor news at first. The White House denied all knowledge of or involvement in the effort.

Over time, however, persistent investigation and reporting – particularly that of Bob Woodward and Carl Bernstein at the Washington Post, began to uncover deeper shenanigans in and around the Oval Office. While Nixon had not necessarily ordered the break-in, he had clearly been involved in covering it up. The President used a strategy of repeated denials, constant misdirection, and hyperbolic accusations regarding the motives of his accusers to offset each new revelation. Eventually, the average American was both too numb to know what to believe and tired of hearing about it or trying to make sense of it. Nixon was re-elected easily in 1974, but the issue refused to die.

Eventually a Special Prosecutor was appointed (Archibald Cox) and the Senate began hearings into the break-in and related events. During these hearings, it was unexpectedly revealed that the President secretly recorded every discussion taking place in the Oval Office or on the Oval Office phone. “Hmm,” the Senate thought. “Those sure would be handy to have.” So, they subpoenaed the tapes.

Nixon at this point insisted that the Special Prosecutor to drop the investigation. He wouldn’t, so Nixon ordered his Attorney General to fire Cox. He refused, so Nixon accepted his resignation. He then ordered the Deputy Attorney General to fire Cox, with the same results. Finally, Nixon tried the Solicitor General, Robert Bork, at that point the Acting Attorney General. Bork fired Cox and kept his job, thus concluding the “Saturday Night Massacre.” (Bork was later nominated to the Supreme Court by President Reagan but could not secure Senate approval.)

Nixon tried to pacify Congress with heavily edited transcripts, summaries, and audio excerpts, but the Senate wanted it all. More and more, the public was beginning to agree. In 1974, the issue reached the Supreme Court.

United States v. Nixon (1974)

Attorneys for the President argued that the separation of powers as mandated by the U.S. Constitution meant the Judicial Branch lacked justiciability in this case, which was strictly between the President and Special Prosecutor – both members of the Executive Branch. In short, it was a family matter. The Court had no role.

Their slightly more plausible argument was that “executive privilege” protected the President from being forced to release the tapes. High level politicians, foreign leaders, and advisors must be able to speak with candor to the President, knowing their privacy would be protected. If high-level conversations were subject to public scrutiny, people would speak less openly and honestly. Politics would trump effective leadership.

Attorneys for the rest of the U.S. government argued that even if executive privilege did require some discretion as to what information could be made public, there was a nevertheless substantial state interest in a fair and complete criminal investigation. It wasn’t just the President; men were going to prison for their roles in the break-in, the cover-up, and whatever else was being revealed along the way. There was every reason to believe these tapes contained specific information related to the investigation; justice demanded their release.

In other words, they weren’t looking for launch codes or wanting to publish ‘behind-the-scenes” dirt on controversial foreign policy decisions. They wanted to know if there was a record of the President saying, “Let’s break the law and then cover it up” or “Hey, Dean – nice job on that felony offense!”

The Decision

In their unanimous decision, penned by Chief Justice Warren Burger, the Supreme Court ordered the President to turn over the tapes. They’d be listened to “in camera” – in chambers, privately, to determine which parts were relevant to the case without revealing state secrets or other privileged information to the public.

The “separation of powers” argument, it turned out, did not mean what the President’s attorneys wanted it to mean:

In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

Besides, the Chief Justice added, the issue was before the Court not in spite of the separation of powers, but specifically because of them. Quoting Chief Justice John Marshall’s opinion in Marbury v. Madison (1803), he concluded, “it is the duty of the courts to say what the law is.”

As to executive privilege, the Court acknowledged that the Executive requires some expectation of confidentiality. Military secrets, national security, difficult policy choices, all required the sort of blunt debate and absolute honesty impossible without it. But the President wasn’t claiming that national defense secrets were involved, or sensitive foreign policy choices, or complex policy debates. He was claiming a blanket right to operate in absolute isolation and without accountability. That, the Court said, is not how it works.

Aftermath

Twelve days later, the White House released the tapes. It was soon discovered that some sections had been erased, despite the Court’s order. The rest, however, provided more than enough damning information to eliminate any chance of Nixon surviving impeachment. A few days after the release of the tapes, the President resigned. Gerald Ford became President, and later pardoned Nixon.

Although Nixon lost his case, the Court’s decision in United States v. Nixon did acknowledge for the first time a degree of executive privilege. Numerous administrations since have made similar claims, looking to protect themselves in the name of protecting the country. At the same time, “Watergate” or anything with “-gate” tacked on to the end has become popular shorthand for any number of political scandals or controversies.

Roe v. Wade (1973) – Written Opinions {Excerpts}

July 21, 2019June 4, 2023 ~ Blue Cereal

I’ve recently been working on something I’m hoping other teachers might find useful for their own reference or for use in the classroom. It’s a compilation of a dozen or so of the most “Have To” Supreme Court cases in U.S. History – case summaries, excerpts from the majority opinions and periodically from dissents as well, and a few guiding questions over both the summaries and the opinion excerpts.

The goal is not breakthrough research on the cases themselves, but a practical guide for use by teachers as they see fit. None of us are experts on everything. Even the most informed among us have to stop and refresh our memory about any number of people and events as they arise, and unless you teach some form of American Government or Constitutional Law, that probably includes many of these landmark cases. More than that, I’ve found there to be a severe gap in existing resources – the “too basic to be engaging” variety in one pile and the “too detailed to be practical” flavors in the other.

“Have To” History: Landmark Supreme Court Cases looks to fill that gap. Plus, there’s all the money and glory that comes from posting curriculum on Teachers Pay Teachers or persuading some edu-publisher to roll the dice on you. Forget giving back or paying forward – deep down, this is about babes and bling.

I shared an “in progress” summary of Roe which is still a bit longer than I’d like, and I’m open to suggestions that don’t involve ideological outrage. Below are excerpts from the various written opinions, also too long at the moment but OH SO DIFFICULT to edit because theyr’e so fascinating! I haven’t written the guiding questions yet, and the final version will also include a single-page summary of the case and a single-page of excerpts from the majority opinion in order to give teachers greater flexibility depending on the level of their class and how much time they wish to devote to each case. A PDF is attached if you’d prefer reading it that way.

Excerpts from Roe v. Wade (1973), Majority Opinion by Justice Harry Blackmun

{Edited for Classroom Use – Subheadings Added for Clarity}

Introduction and Contextualization

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man’s attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr. Justice Holmes’ admonition in his now-vindicated dissent in Lochner v. New York (1905):

[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Justiciability

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated… But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.” (Southern Pacific Terminal Co. v. ICC, 1911)…

We, therefore, agree with the District Court that Jane Roe had standing to undertake this litigation, that she presented a justiciable controversy, and that the termination of her 1970 pregnancy has not rendered her case moot…

History of Abortion Laws in Western Culture

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century…

By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening, but were lenient with it before quickening… Gradually, in the middle and late 19th century, the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother… In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws…

It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy…

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously…

A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman… Modern medical techniques have altered this situation… Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth… Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

The third reason is the State’s interest — some phrase it in terms of duty — in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life… In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life… {T}hey claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest… They claim that adoption of the “quickening” distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception…

The “Right to Privacy”

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment (Stanley v. Georgia, 1969); in the Fourth and Fifth Amendments (Terry v. Ohio, 1968, Katz v. United States, 1967, Boyd v. United States, 1886)… in the penumbras of the Bill of Rights (Griswold v. Connecticut, 1965); in the Ninth Amendment…; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska, 1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” (Palko v. Connecticut, 1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage (Loving v. Virginia, 1967); procreation (Skinner v. Oklahoma, 1942); contraception (Eisenstadt v. Baird, 1972); family relationships (Prince v. Massachusetts, 1944); and childrearing and education (Pierce v. Society of Sisters, 1925, Meyer v. Nebraska, 1923)

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… or… in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved…

On the basis of elements such as these, appellant… argue{s} that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute…

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation…
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest” (Kramer v. Union Free School District, 1969, Shapiro v. Thompson, 1969, Sherbert v. Verner, 1963) and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake (Griswold v. Connecticut, 1965, Aptheker v. Secretary of State, 1964, Cantwell v. Connecticut, 1940)…

{In} recent abortion cases…, courts have recognized these principles. Those striking down state laws have generally scrutinized the State’s interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State’s determinations to protect health or prenatal life are dominant and constitutionally justifiable.
….

At What Point Should Government Step In to Protect the Unborn?

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn… This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations.

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus… The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question… {but} the unborn have never been recognized in the law as persons in the whole sense.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact… that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth…

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb… If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Measured against these standards, {Texas laws} restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here…

Summary and Clarification

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

2. The State may define the term “physician”… to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined…

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention…

{The following footnotes, technically still part of the Majority Opinion as written by Justice Blackmun, are included not as essential elements of the decision but because they might be of interest to those who’ve read this far.}

Footnote 54. When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists. The exception contained in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?
There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out… that, in Texas, the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

Footnote 67. Neither in this opinion nor in Doe v. Bolton {a related case whose decision was announced on the same day}, do we discuss the father’s rights, if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father. We are aware that some statutes recognize the father under certain circumstances…

Excerpts from Roe v. Wade (1973), Concurring Opinion by Justice Potter Stewart

{Edited for Classroom Use}

“In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” (Board of Regents v. Roth, 1972) The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the “liberty” protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights…
As Mr. Justice Harlan once wrote:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This “liberty” is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. (Poe v. Ullman, 1961, Dissenting Opinion)
…
In the words of Mr. Justice Frankfurter,
Great concepts like… “liberty”… were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged. (National Mutual Ins. Co. v. Tidewater Transfer Co., 1949, Dissenting Opinion)

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. (Loving v. Virginia, 1967, Griswold v. Connecticut, 1965, Pierce v. Society of Sisters, 1925, Meyer v. Nebraska, 1923, Prince v. Massachusetts, 1944, Skinner v. Oklahoma, 1942) As recently as last Term, in Eisenstadt v. Baird, we recognized the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters (1925), or the right to teach a foreign language protected in Meyer v. Nebraska (1923).

Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

Excerpts from Roe v. Wade (1973), Dissenting Opinion by Justice William Rehnquist

{Edited for Classroom Use}

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. (Katz v. United States, 1967).

If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of MR. JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective…

The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective… But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test. . But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it…

The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one… partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment… By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion… Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857, and “has remained substantially unchanged to the present time.”
…
For all of the foregoing reasons, I respectfully dissent.

Should I Pray or Should I Go?

Background

The Decision(s)

<img decoding="async" src="https://files.bluecerealeducation.com/drupal/JusticeHugoBlack.jpg" alt="Justice Hugo Black" title="Justice Hugo Black" style="float: left; margin: 3px;" width="120" height="167" data-eio="l">The Majority Opinion

<img decoding="async" src="https://files.bluecerealeducation.com/drupal/JusticeFelixFrankfurter.jpg" alt="Justice Felix Frankfurter" title="Justice Felix Frankfurter" style="float: left; margin: 3px;" width="120" height="120" data-eio="l">Frankfurter’s Concurrence

<img decoding="async" src="https://files.bluecerealeducation.com/drupal/JusticeRobertJackson.jpg" alt="Justice Robert Jackson" title="Justice Robert Jackson" style="float: left; margin: 3px;" width="120" height="187" data-eio="l">Jackson’s Concurrence

<img decoding="async" src="https://files.bluecerealeducation.com/drupal/JusticeStanleyReed.jpg" alt="Justice Stanley Reed" title="Justice Stanley Reed" style="float: left; margin: 3px;" width="120" height="150" data-eio="l">Reed’s Dissent

Aftermath

Recap of the Story So Far…

Part Two: West Virginia State Board of Education v. Barnette (1943)

A Free, Public Re-Education

“Ordinarily We Would Feel Constrained…”

Nine Justices, One Hundred and Eighty Degrees

Aftermath

“Have To” History: Supreme Court Cases

One Nation, Quite Divisible, With Liberty and Justice for Those Who Cooperate

Minersville School District v. Gobitis (1940)

The Red, White, Black & Blue

Stuff You Don’t Really Want To Know (But For Some Reason Have To) About U.S. v. Nixon (1974)

Three Big Things:

<img decoding="async" style="float: left; margin: 2px 3px; border: 1px solid black;" title="Serious Nixon" src="https://files.bluecerealeducation.com/drupal/Nixon1.jpg" alt="President Nixon Looking Serious" width="275" height="193" data-eio="l" />Background

President Nixon

The Watergate Break-In

United States v. Nixon (1974)

The Decision

Aftermath

Excerpts from Roe v. Wade (1973), Majority Opinion by Justice Harry Blackmun

{Edited for Classroom Use – Subheadings Added for Clarity}

Excerpts from Roe v. Wade (1973), Concurring Opinion by Justice Potter Stewart

{Edited for Classroom Use}

Excerpts from Roe v. Wade (1973), Dissenting Opinion by Justice William Rehnquist

{Edited for Classroom Use}

The Majority Opinion

Frankfurter’s Concurrence

Jackson’s Concurrence

Reed’s Dissent

Background