¹ Representative Daniel Carroll of Maryland during debate upon the proposed Bill of Rights in the First Congress, August 15, 1789, I Annals of Cong. 730. Quoted by Brennan, Justice, concurring opinion, Abington School Dist. v. Schempp, 374 U.S. 203, 231 (1963).Google Scholar

² Engel v. Vitale, 370 U.S. 421 (1962).

³ Abington School Dist. v. Schempp, 374 U.S. 203 (1963).

⁴ For a good summary of the opposition to this decision see Pfeffer, Leo, “Court, Constitution, and Prayer,” Rutgers Law Review, 16 (Summer, 1962), 735.Google Scholar

⁵ E.g., see Cahn, Edmond, “On Government and Prayer,” New York University Law Review, 37 (December, 1962), 981–1000 Google Scholar; Griswold, Erwin W., “Absolute Is In The Dark,” Utah Law Review, 8 (Summer, 1963), 167–182 Google Scholar; Pfeffer, op. cit.; Ramsey, Paul, “How Shall We Sing the Lord's Song In a Pluralistic Land,” Journal of Public Law, 13 (1964), 353–400.Google Scholar

⁶ See Cahn, Edmond, “The ‘Establishment of Religion’ Puzzle,” New York University Law Review, 36 (November, 1961), 1275.Google Scholar

⁷ 330 U.S. 1, 15–16 (1947).

⁸ McCollum v. Board of Education, 333 U.S. 203 (1948).

⁹ In Everson v. Board of Education, 330 U.S. 1 (1947).

¹⁰ Indeed, Justice Jackson, dissenting, argued that the opinion was inconsistent with the decision and was reminded of “Julia who, according to Byron's reports, ‘whispering “I will ne'er consent,” -consented’”: ibid., 19.

¹¹ Ibid., 15–16.

¹² For a discussion of the extraordinary sweep of the definition, see Moore, John Norton, “The Supreme Court and the Relationship Between the ‘Establishment’ and ‘Free Exercise’ Clauses,” Texas Law Review, 42 (December, 1963) 164–167.Google Scholar

¹³ Everson v. Board of Education, 330, U.S. 1, 6, 7 (1947).

¹⁴ Ibid., 18.

¹⁵ Ibid., 16.

¹⁶ 333 U.S. 203 (1948).

¹⁷ 343 U.S. 306 (1952). As one commentator has said, by the time the Zorach case reached the Court, “It was clear that, as a practical reality, the sweeping decision of 1948 could no longer be lived with”: William O'Brien, F. S.J., Justice Reed and the First Amendment: The Religion Clauses (Washington: Georgetown University Press, 1958), p. 170.Google Scholar

The preponderance of opinion holds that the Zorach case does embody a significant departure from the philosophy of the Everson case and especially of the McCollum case; e.g., see Fellman, David, “Constitutional Law in 1951–1952,” this Review, XLVIII (March, 1953), 160–162 Google Scholar; Katz, Wilber G., “Freedom of Religion and State Neutrality,” University of Chicago Law Review, 20 (Spring, 1953), 426–440 CrossRefGoogle Scholar; Reed, George E., “Church-State and the Zorach Case,” Notre Dame Lawyer, 27 (Summer, 1952), 529–551 Google Scholar; Black, Justices, Frankfurter, and Jackson, , dissenting in Zorach v. Clauson , 343 U.S. 306, 315–325 (1952).Google Scholar It has, however, been argued that the Zorach case represents no departure from the Everson-McCollum doctrine; e.g., see Brady, Joseph H., Confusion Twice Confounded: The First Amendment and the Supreme Court (South Orange, N.J.: Seton Hall University Press, 1954), 184–189.Google Scholar

¹⁸ Zorach v. Clauson, 343 U.S. 306 (1952).

¹⁹ In delivering the opinion of the Court, Justice Douglas compared—almost equated—the released time program of New York with excusing children from public schools in order to allow them to attend a religious service or to observe a religious holiday: ibid., 313. See Katz, op. cit., p. 428; and Costanzo, Joseph F. S.J., “Federal Aid to Education and Religious Liberty,” University of Detroit Law Journal, 36 (October, 1958), 37–38.Google Scholar

²⁰ In McGowan v. Maryland, 366 U.S. 420 (1961), and Two Guys v. McGinley, 366 U.S. 582 (1961), the Court held that the establishment clause as it is made to apply to the states through the Fourteenth Amendment, was not violated by the Sunday laws attacked; in Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961), the Court held that neither the establishment nor the free exercise clause, made applicable to the states in the same way, was violated.

²¹ See particularly McGowan v. Maryland, 366 U.S. 420, 444–5, and 449 (1961).

²² Torcaso v. Watkins, 367 U.S. 488 (1961). The Court said: “This Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him”: ibid., 496.

²³ Ibid., 495.

²⁴ Engel v. Vitale, 370 U.S. 421 (1962).

²⁵ For a discussion of why Engel seemed “so clear” to the Court, and why the Court was almost unanimous, in contrast to some other establishment cases, see Cahn, “On Government and Prayer,” 988–989.

²⁶ To be sure, some scholars had argued that the establishment clause could not reasonably be incorporated into the due process clause of the Fourteenth Amendment. E.g., Corwin, Edward S., “The Supreme Court as National School Board,” Law and Contemporary Problems, 14 (Winter, 1949), 3–22.CrossRefGoogle Scholar Fifteen years after that incorporation, Everson v. Board of Education, 330 U.S. 1 (1947) (some would say twenty-one years, Cantwell v. Connecticut, 310 U.S. 296 [1940]), however, it was a bit late to argue that the establishment clause had not been incorporated, since the Court had never faltered in its holding that it had been incorporated.

²⁷ Engel v. Vitale, 370 U.S. 421, 430 (1962).

²⁸ Ibid., 425.

²⁹ Abington School Dist. v. Schempp, 374 U.S. 203 (1963).

³⁰ See concurring opinion of Justice Brennan, ibid., 270–271.

³¹ Ibid., 216.

³² Ibid., 226. The word “neutral” or “neutrality” is used or quoted nine times in the opinion, and can be safely said to be the opinion's dominant concern.

³³ Ibid., 222–223.

³⁴ Ibid., 222.

³⁵ Sherbert v. Verner, 374 U.S. 398 (1963).

³⁶ As ProfessorFellman, has said, “the wall of separation is bound to be quite porous”: Religion in American Public Law (Boston: Boston University Press, 1965), p. 107.Google Scholar

³⁷ This exception was first specifically mentioned by the Court in McGowan v. Maryland, 366 U.S. 420, 444 (1961). The Court did employ a “public purpose” test to serve as an exception to the definition of the establishment clause when the definition was first formulated: Everson v. Board of Education, 330 U.S. 1, 6, 7 (1947). But a “public purpose” exception is much broader than a “secular objective” exception.

³⁸ Pfeffer regards the secular objective test as not merely an exception to the Everson definition, but, together with a “secular means” test, as the basis of the Court's interpretation of the establishment clause for many years, except for a lapse in Zorach: “Court, Constitution, and Prayer,” 744.

³⁹ Webster's Third New International Dictionary of the English Language Unabridged. (Springfield, Massachusetts: G. & C. Merriam Co., 1961).

⁴⁰ See Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

⁴¹ Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961).

⁴² Braunfeld v. Brown, 366 U.S. 599, 613 (1961). Pfeffer, who supports the secular objective test, admits that it will sometimes have adverse effects on religion. He writes: “In governmental effectuation of its secular purposes, its action may, as an incidental by-product, affect religion, either benefically or detrimentally—indeed, one would assume that this would be generally so—and that fact, the Court has consistently held, does not restrict government in the manner in which it effects its purposes”: op. cit., 744. Admittedly, almost any test in this sensitive area may have such incidental effects, but the secular objective test seems to be particularly callous about its harmful effect on the free exercise of religion. Justices Brennan and Stewart were alert in the Sunday law cases to the danger inherent in the secular objective test, and thus in effect called for its modification by a free exercise test. Braunfeld v. Brown, 366 U.S. 599, 610–616 (1961). Justice Douglas, to be sure, saw the threat to the free exercise of religion in the Court's decision in the Sunday law cases, but he would have solved the problem simply by invalidating all Sunday closing laws. McGowan v. Maryland, 366 U.S. 420, 561–581 (1961).

⁴³ Van Alstyne, William W., “Constitutional Separation of Church and State: The Quest for a Coherent Position,” this Review, 57 (December, 1963), 865–882.Google Scholar

⁴⁴ Ibid., p. 876.

⁴⁵ The New York Times, August 29, 1963, p. 21.

⁴⁶ Ibid., April 29, 1964, p. 1. The fact that several different religions were involved does not preclude the application of the standard proposed by Professor Van Alstyne. For the Court has made clear that a prayer is sectarian even when it is as broad in its theology as the Regents' prayer in New York: Engel v. Vitale, 370 U.S. 421 (1962). For constitutional purposes, any group of churches or clergymen must be considered to be sectarian to some extent, however minimal the theological or philosophical ground on which they agree.

⁴⁷ The New York Times, April 29, 1964, p. 1.

⁴⁸ Ibid., April 29, 1964, pp. 1, 29.

⁴⁹ Van Alstyne, op. cit., p. 876.

⁵⁰ The secular objective test has been employed to support governmental aid to religious schools, since the aid would be directed only toward the teaching of secular subjects [ Legal Department, National Catholic Welfare Conference, “The Constitutionality of the Inclusion of Church-Related Schools in Federal Aid to Education,” Georgetown Law Journal, 50 (Winter, 1961), 397–455 Google Scholar, particularly pp. 401, 434–437] and to oppose such aid, since religion, specifically the Roman Catholic religion, is inextricably integrated into the teaching of all subjects in Roman Catholic schools [Konvitz, op. cit., pp. 58–59]. Konvitz is here replying to the argument of Father Parsons that the parochial school serves a public function by providing “secular education,” and therefore may receive state aid: Parsons, Wilfrid S.J., The First Freedom (New York: The Declan X. McMullen Company, Inc., 1948), 114–127.Google Scholar

⁵¹ In the Bible-reading cases, the Court noted that the states had employed the secular purpose test to support the reading of the Bible. “Included within its secular purposes, it [the'State] says, are the promotion of moral values, the contradiction to the materialistic trends of our times, perpetuation of our institutions and the teaching of literature”: Abington School Disi. v. Schempp, 374 U.S. 203, 223 (1963).

⁵² The Court has implied that such a practice is constitutional: Zorach v. Clauson, 343 U.S. 306, 313 (1952).

⁵³ McCollum v. Board of Education, 333 U.S. 203 (1948).

⁵⁴ E.g., see opinion of the Court, written by Justice Frankfurter, in Minersville School District v. Gobitis, 310 U.S. 586, 593 (1940). More recently Justice Douglas, dissenting, said, “This freedom plainly includes freedom from religion with the right to believe, speak, write, publish and advocate anti-religious programs”: McOowan v. Maryland, 366 U.S. 420, 564 (1961).

⁵⁵ Religion has in effect been defined to include both belief and nonbelief in God by the United States Court of Appeals, District of Columbia Circuit (Washington Ethical Society v. District of Columbia, 249 F. 2d 127 [1957]) and by the District Court of Appeal, First District, Division 1 of California (Fellowship of Humanity v. County of Alameda, 315P. 2d 394 [1957]) in decisions which held that tax exemptions for religious organizations applied to organizations which were not based on belief in God: see Fellman, , Religion in American Public Law, pp. 49–50.Google Scholar

⁵⁶ It is significant that Pfeffer, Leo in his book, Church, State, and Freedom (Boston: The Beacon Press, 1953)Google Scholar, did not mention a definition of religion until Part III (beginning on page 497), which is devoted to the free exercise clause.

⁵⁷ Such a definition was long ago implied by Justice Frankfurter in a free exercise case, when, speaking for the Court, he said, “Certainly the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of the laws”: Minersville School District v. Gobitis, 310 U.S. 586, 593 (1940).

The third session of Vatican II adopted a “Declaration on the Church's Relations with Non-Christians,” the summary of which contained the following Introduction:

“The community of all peoples is one. One is their origin, for God made the entire human race live on all the face of the earth. One, too, is their ultimate end, God. Men expect from the various religions answers to the riddles of the human condition: What is man? What is the meaning and purpose of our lives? What is moral good and what is sin? What are death, judgment, and retribution after death?”: Council Daybook, Vatican II, Session S. Edited By Anderson, Floyd (Washington, D.C.: National Catholic Welfare Conference, 1965), p. 282 Google Scholar (emphasis added).

⁵⁸ For a good indication of the insistency of this question see Murray, John Courtney S.J., The Problem of God, Yesterday and Today (New Haven and London: Yale University Press, 1964), p. 4.Google Scholar

⁵⁹ Meiklejohn, Alexander, “Educational Cooperation Between Church and State,” Law and Contemporary Problems, 14 (Winter, 1949), 62.CrossRefGoogle Scholar

⁶⁰ The Washington Post and Times Herald, June 20, 1963, p. 20.

⁶¹ For a list of the various ways in which there has been cooperation between church and state and state aid to churches, see Parsons, op. cit., pp. 123–124. All three volumes of Stokes', Anson Phelps Church and State in the United States (New York: Harper and Brothers, 1950)Google Scholar attest to long and continuing association and cooperation between church and state, and repeatedly point to various forms of state aid to religion.

⁶² E.g., Kurland, Philip B., Religion and the Law of Church and State and the Supreme Court (Chicago: Aldine Publishing Company, 1962).Google Scholar

⁶³ Kurland would not allow such an exemption: ibid., p. 106. The Court dismissed an appeal involving a sabbath law, which granted such an exemption “for want of a substantial federal question,” in Arlan's Dept. Store v. Kentucky, 371 U.S. 218 (1952). The effect was to permit the exception to stand.

⁶⁴ Sherbert v. Verner, 374 U.S. 398 (1963).

⁶⁵ Ibid., 406 (1963).

⁶⁶ Everson v. Board of Education, 330 U.S. 1 (1947)

⁶⁷ McCollum v. Board of Education, 333 U.S. 203 (1948).

⁶⁸ In commenting on the case, Corwin wrote, “Besides, so far as anything to the contrary appears, had James Terry and his parent made proper application, the school authorities would have willingly assigned accommodations where the two of them might have foregathered during the released time period to confer with regard to their common faith—or lack of it”: op. cit., p. 8.

⁶⁹ Zorach v. Clausen, 343 U.S. 306 (1952).

⁷⁰ Torcaso v. Watkins, 367 U.S. 488 (1961).

⁷¹ McGowan v. Maryland, 366 U.S. 420 (1961); Two Guys v. McGinley, 366 U.S. 582 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); and Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961).

⁷² And even Douglas admitted that “The State can, of course, require one day of rest a week: one day when every shop or factory is closed.” McGowan v. Maryland, 366 U.S. 420, 576 (1961).

⁷³ Braunfeld v. Brown, 366 U.S. 599, 610 (1961).

⁷⁴ Ibid., 613–616. Such exemptions are apparently feasible, for Justice Brennan pointed out, “that a majority—21—of the 34 states which have general Sunday regulations have exemptions of this kind”: Ibid., 614.

⁷⁵ Engel v. Vitale, 370 U.S. 421 (1962).

⁷⁶ Abington School Dist. v. Schempp, 374 U.S. 203 (1963).

⁷⁷ 62 Stat. 604 (1948), as amended, 50 U.S.C. App. §453 (Supp. V, 1959–1963).

⁷⁸ 62 Stat. 612 (1948), 50 U.S.C. App. §456 (j) (1958). This is not the only way in which religion has been defined in the history of exemptions for conscientious objectors in the United States. See Opinion of the Court, United States v. Seeger, 380 U.S. 163, 170–173 (1965) and Conklin, Francis J. S.J., “Conscientious Objector Provisions: A View in the Light of Torcaso v. Watkins ,” Georgetown Law Journal, 51 (Winter, 1963), 252–283.Google Scholar

⁷⁹ That such neutrality was required was clearly implied by the Court in Torcaso v. Watkins, 367 U.S. 488, 495 (1961). “The sweeping language utilized in Torcaso all but explicitly rules the ‘belief in a Supreme Being’ clause of the 1948 Selective Service Act unconstitutional”: Conklin, op. cit., 252–253.

⁸⁰ United States v. Seeger, 380 U.S. 163 (1965).

⁸¹ Ibid., 165.

⁸² Of Jakobson, the Court said, “He stated on the Selective Service System form that he believed in a ‘Supreme Being’ who was ‘Creator of Man’ in the sense of being ‘ultimately responsible for the existence of’ man and who was ‘the Supreme Reality’ of which ‘the existence of man is the result.’ R. 44. (emphasis in the original)”: ibid., 167. After recalling some of Peter's comments about religion, the Court said: “As to his belief in a Supreme Being, Peter stated that he supposed ‘you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use”: ibid., 169.

Seeger is the least explicit. Despite the fact that, according to the Court, “he preferred to leave the question as to his belief in a Supreme Being open, ‘rather than answer “yes” or “no”’ [Ibid., 166] he did, at least at one point, in effect answer “yes”; for according to the Court, “He cited such personages as Plato, Aristotle and Spinoza for support of his ethical belief in intellectual integrity ‘without belief in God, except in the remotest sense’”: ibid. The exception was certainly enough to meet the standard of the 1948 act, for surely the Congress did not intend that the courts test the proximity of conscientious objectors' beliefs in a Supreme Being.

⁸³ Ibid., 173.

⁸⁴ Ibid., 174.

⁸⁵ Ibid., 174–183. Among the sources quoted were Paul Tillich, Systematic Theology; John A.T. Robinson, Honest to God; and the Schema of Vatican Council II.

⁸⁶ Ibid., 183–184. Essentially the same idea had been expressed earlier in the same opinion: ibid., 165–166.

⁸⁷ Ibid., 186 (emphasis added).

⁸⁸ 62 Stat. 611 (1948), 50 U.S.C. App. §456 (g) (1958).

⁸⁹ Niznik v. United States, 184 F 2d 972, 974 (1950).

⁹⁰ See Figinski, M. Albert, “Military Chaplains—A Constitutionally Permissible Accommodation Between Church and State,” Maryland Law Review, 24 (Fall, 1964), 377–416.Google Scholar

⁹¹ Even Pfeffer, Leo concedes that “chaplains in the armed forces may be justified under the First Amendment's guaranty of religious freedom”: Church, State, and Freedom, p. 217.Google Scholar

⁹² President's Committee on Religion and Welfare in the Forces, Armed, The Military Chaplaincy (1951), p. 28.Google Scholar

⁹³ Pfeffer, , discussing military chaplains, says, “If, therefore, the expenditure of government funds for religious purposes is militarily necessary, it is constitutionally permissible”: Church, State, and Freedom, p. 218.Google Scholar

⁹⁴ The words in brackets replace the word “ministry” used by the President's Committee, op. cit., p. 28.

⁹⁵ Such protection was sought and obtained by the parents involved in Engel v. Vitale, 370 U.S. 421 (1962) and Abington School Dist. v. Schempp, 374 U.S. 203 (1963).

⁹⁶ This kind of neutrality has already been imposed upon public schools by the Court. “Bearing in mind that the first amendment apparently bars the establishment of nontheistic as well as theistic religions [Torcaso v. Watkins, 367 U.S. 488 (1961)], it would logically follow from the Engel [Engel v. Vitale, 370 U.S. 421 (1962)] decision that official prescription of secular humanism's tenet of Human Brotherhood is as much beyond the pale for the classroom as is the Fatherhood of God and Brotherhood of man of the Jewish and Christian traditions”: Louisell, David W. and Jackson, John H., “Religion, Theology, and Public Higher Education,” California Law Review, 50 (December, 1962), 752–753.CrossRefGoogle Scholar

⁹⁷ See Canavan, Francis, “Implications of the School Prayer and Bible Reading Decisions: The Welfare State,” Journal of Public Law, 13 (1964), 442.Google Scholar

⁹⁸ Op. cit., p. 67.

⁹⁹ See Michaelsen, Robert, “The Supreme Court and Religion in Public Higher Education,” Journal of Public Law, 13 (1964), 349.Google Scholar

¹⁰⁰ The constitutionality of optional courses in religion at the university level has been asserted by Louisell and Jackson, op. cit., 751–799, particularly 765–766.

¹⁰¹ Canavan, op. cit., p. 442.

¹⁰² Louisell and Jackson, op. cit., p. 752.

¹⁰³ Kenealy, William J. S.J., “Equal Justice Under Law—Aid to Education,” Loyola Law Review, 11 (1962–1963), 183–212.Google Scholar

¹⁰⁴ Although Lew Pfeffer holds that the Constitution positively forbids governmental aid to parochial schools, he can be effectively quoted in support of the more limited concept that the Constitution does not require governmental aid for parochial schools. Discussing the argument that to exclude parochial schools from federal aid to education would interfere with freedom of religion, he writes:

“During the past decade there has been a growing movement to fluoridate the water supply in order to protect the teeth of our children. Many municipalities have engaged in the program. But drinking fluoridated water violates the conscience of Christian Scientists. A number of suits have been brought to stop the program, but all have proved unsuccessful and the Supreme Court has refused to interfere with these decisions. It would undoubtedly be a great expense for Christian Scientists living in communities with a fluoridated water supply to purchase unfluoridated water as required by their conscience and the demands of life. Compulsion of life is at least as potent as compulsion of law, yet I have not come across a single report of a demand by Christian Scientists that the government give them money so that they can buy such water and thus be economically able to exercise their freedom of religion. I doubt very much that, if such a demand were made, serious consideration would be given to it by the courts”: “Federal Funds for Parochial Schools? No,” Notre Dame Lawyer, 37 (March, 1962), 317.

¹⁰⁵ Church, State, and Freedom, p. 498.

¹⁰⁶ Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

¹⁰⁷ McGowan v. Maryland, 366 U.S. 420, 562 (1961).

¹⁰⁸ It is well to recall the words of Justice Frankfurter, speaking for the Court, in a case involving a state law which made it a misdemeanor to distribute or prepare or have literature or other matter, “tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of youth. …” Butler v. Michigan, 352 U.S. 380, 381 (1957). He said, “The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children”: ibid., 383–384. The conviction under the act was reversed.