“Have To” History: Zorach v. Clauson (1952)

Why Did the Children Cross the Road?

Background

The City of New York, responding to the Court’s decision in McCollum v. Board of Education (1948), created a “released time” program largely identical to that struck down in Champaign, Illinois. The only substantial difference was that students whose families gave permission actually left school grounds for religious instruction during the school day.

Students not participating were required to remain in school. School officials communicated with religious instructors to confirm the attendance of those released, and the school handled the discipline of anyone using the occasion to skip out altogether. In short, the schools were certainly facilitating religious instruction, even if they weren’t actually providing it on site.

Several parents objected to the program as a violation of the Establishment Clause. (There was also a legal argument made that it violated “free exercise,” but this was quickly dismissed by the courts.) Schools were clearly promoting religious instruction, they argued, and in only of a handful of favored varieties. Staff exerted pressure on students to conform and gave tacit approval to the verbal and corporeal abuse they suffered from their more devout peers. 

Changing Circumstances

A Fence of Separation

The physical location of “released time” religious instruction wasn’t the only contextual shift since McCollum. The United States was in the early years of McCarthyism and had just entered the Korean War. Patriotic Americans had begun to suspect Communist infiltration in their midst, already at work at all levels of government and sowing the seeds of chaos and godlessness. While the social and political ideologies of Marxism and the continued presence of people with funny last names threatened the nation with internal decay, the Soviets began testing their own atom bombs in hopes of inflicting some external destruction as well.

The celebrations of freedom and democracy which lingered after World War II were rapidly fading in favor of fear, suspicion, and a sense of persecuted minority status among the straight white Protestants who still made up nearly 90% of the nation’s population (and virtually 100% of its leadership). Historically, it seems, nothing threatens entrenched demographic power like a handful of outliers thinking their lives matter as well. 

Despite these cultural shifts, had this been the same Supreme Court which decided McCollum four years earlier, it’s impossible to know how they’d have adapted to the shift from “on campus” to “up the street a ways.” The Court, however, had lost two members in the interval – Justice Wiley Rutledge and Justice Frank Murphy, both FDR appointees who’d been reliable defenders of individual liberties (by the standards of the times). They were replaced by Truman appointees Justice Sherman Minton and Justice Tom C. Clark respectively, both of whom were virulently anti-Communist and pro-God-as-cultural-unifier.

The ideology of our Justices matters. While most make every effort to remain faithful to the law and the Constitution on which it is built, the glasses one wears often determine the color and clarity of everything one sees.

The Decision

In a 6 – 3 decision, the Court determined that the logistical change from on-campus to off-campus religious instruction during the school day was enough to satisfy the limitations imposed by the First Amendment (and applied to the states via the Fourteenth). Justice William O. Douglas wrote the Majority Opinion, in which he insisted there’d been no evidence to suggest students felt coerced or otherwise pressured to attend religion classes. If there had been, by golly, the Court would definitely not be OK with that.

Absent such coercion, however, it would be a mistake for the Court to too easily find “establishment” lurking everywhere or to treat any recognition of faith as a threat to the American way of life:

The First Amendment… does not say that, in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other… Otherwise the state and religion would be aliens to each other — hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups…

Jurisprudence often employs this sort of “taken to a logical extreme” test when weighing its opinions. It’s a colorful, yet prudent, means of weighing potential consequences of this or that decision ahead of time. At the same time, it’s a relatively short leap from “how might this be interpreted if we’re not careful” to “what other wacky scenarios could we invoke to justify what we’re about to do?”

Here’s the most famous bit from Zorach’s Majority Opinion:

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.

To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.

Dissenting Opinions

Each of the three dissenting justices submitted his own oppugnant exposition. Normally, this would suggest differing lines of legal reasoning used to reach comparable conclusions, or a desire on the part of one or more justices to more fully explore some salient element of the constitutional conundrums involved. In this case, however, the opinions read as if they were simply too horrified to share a solitary invective. 

Justice Robert H. Jackson, in particular, did not take at all kindly the majority’s suggestion that opposition to this “released time” program on constitutional grounds implied a “hostility to religion,” nor was he impressed by the distinctions drawn between this case and McCollum:

The greater effectiveness of this system over voluntary attendance after school hours is due to the truant officer who, if the youngster fails to go to the Church school, dogs him back to the public school room. Here schooling is more or less suspended during the “released time” so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church. It takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion. It is as unconstitutional, in my view, when exerted by indirection as when exercised forthrightly.

As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court’s suggestion that opposition to this plan can only be anti-religious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.

Justice Hugo Black makes almost the exact same argument, but with his own brand of jurisprudential outrage leaving pithy spittle splattered all ‘round:

Here, the sole question is whether New York can use its compulsory education laws to help religious sects get attendants presumably too unenthusiastic to go unless moved to do so by the pressure of this state machinery. That this is the plan, purpose, design and consequence of the New York program cannot be denied. The state thus makes religious sects beneficiaries of its power to compel children to attend secular schools… In considering whether a state has entered this forbidden field, the question is not whether it has entered too far, but whether it has entered at all. New York is manipulating its compulsory education laws to help religious sects get pupils. This is not separation, but combination, of Church and State.

The Court’s validation of the New York system rests in part on its statement that Americans are “a religious people whose institutions presuppose a Supreme Being.” … It was precisely because Eighteenth Century Americans were a religious people divided into many fighting sects that we were given the constitutional mandate to keep Church and State completely separate… It is this neutrality the Court abandons today…

Justice Frankfurter preferred to express his disappointment through the sort of dry snippiness in which he periodically excelled:

The Court tells us that, in the maintenance of its public schools, “{The State government} can close its doors or suspend its operations” so that its citizens may be free for religious devotions or instruction. If that were the issue, it would not rise to the dignity of a constitutional controversy…

The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case…

The deeply divisive controversy aroused by the attempts to secure public school pupils for sectarian instruction would promptly end if the advocates of such instruction were content to have the school “close its doors or suspend its operations” — that is, dismiss classes in their entirety, without discrimination — instead of seeking to use the public schools as the instrument for securing attendance at denominational classes. The unwillingness of the promoters of this movement to dispense with such use of the public schools betrays a surprising want of confidence in the inherent power of the various faiths to draw children to outside sectarian classes — an attitude that hardly reflects the faith of the greatest religious spirits.

So, ouch.

Aftermath

The issues involved in McCollum and Zorach would spread beyond school grounds, eventually manifesting in questions about whether or not employees could be fired for taking Saturday as the Sabbath instead of Sunday, or whether or not Native American inmates had a right to ceremonial peyote while incarcerated. The natural tension between “free exercise” and “establishment” seemed to increase proportionally as democracy and equality expanded.

As laudable as freedom and diversity were (and are), they spawn an existential dilemma: how do we maintain a functioning political society in which “all men are created equal” without some sort of unifying culture or belief system to hold us all together? The uncertainty involved will contribute to some rather crazy times, particularly a decade after Zorach when the Supreme Court would kick God out of school altogether.

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

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

Church State WallThe 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.

Kid Alone In The HallMcCollum’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.

Stained Glass of JusticeWhen 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.

Justice Hugo BlackThe 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.

Justice Felix FrankfurterFrankfurter’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.

Justice Robert JacksonJackson’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.

Justice Stanley ReedReed’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.”

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