At issue was whether a school board in Illinois could employ approved voluntary religious teachers of the Catholic, Protestant, and Jewish faiths to give instruction on their beliefs once each week of 30 and 45 minute durations. Pupils attended the instruction only at the request of their parents, but other students were not "released from their public school duties, which were compulsory under state law." A resident and tax payer of the school district with a child enrolled in the school system sued for an order to have the practice terminated of releasing pupils for religious instruction.
A preliminary issue to be decided was whether the person bringing suit had sufficient involvement in the circumstances to allege a legal violation of personal rights. In other words, could parents who are residents and tax payers of the school district sue to terminate the manner in which other students were taught, when their own child was actually excused from the instruction. The Court held McCollum did have an interest in the case, as the district had a compulsory education law, violation of which was a misdemeanor, punishable by a fine. However, Justice Jackson in actually concurring with the ruling of the court, still questioned whether there was jurisdiction to decide the case.
The school board challenged the ruling of Everson and urged its repudiation, contending that the First Amendment was intended to forbid only government preference of one religion over another, and further contending that the Establishment Clause could not be held as a prohibition against states through the 14th Amendment.
The Court held --
This utilization of the State's tax supported public school system and its machinery for compulsory public school attendance to enable sectarian groups to give religious instruction to public school pupils in public school buildings violates the First Amendment of the Constitution, made applicable to the states by the Fourteenth Amendment... 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. The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond question utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the Sates by the Fourteenth) as we interpreted in Everson v. Board of Education... The majority in the Everson case, and the minority as shown by quotations from the dissenting views in our notes...agreed the First Amendment's language, properly interpreted, had erected a wall separation between Church and State... 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 government hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion. For the 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.
Then, Justices Frankfurter, Jackson, Rutledge, and Burton set out a concurring opinion. They noted that to understand the wall of separation metaphor, the relevant history of religious education in America must be considered, the place of the "released time" movement in that history, and its precise manifestation in the McCollum case. Traditionally, organized education had to be church education, and colonial schools certainly had a religious orientation.
The evolution of colonial education largely in the service of religion, into the public school system of today is the story of changing conceptions regarding the American democratic society, of the functions of state-maintained education in such a society, and the role therein of the free exercise of religion by the people. The modern public school derived from a philosophy of freedom reflected in the First Amendment.
The basic event in the history of religious liberty of the Remonstrance of James Madison arose from a proposal of state support to religious education. This event evoked similar contests in other states, such as New York and Massachusetts, which disassociated religious teaching from state maintained schools. These controversies, often long and fierce, may be summarized in noting the prohibition of religious instruction by the state as a guiding principle, in law and feeling, of the American people, established long before the 14th Amendment applied the Establishment Clause of the First Amendment to the states. Thus, separation of the field of education was not imposed on unwilling states by force of superior law, but the 14th Amendment merely reflects a dominant principle in our national life. The restriction on religious instruction in the schools is based on the whole experience of our people.
Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instrument but especially through its educational agencies was the democratic response of the American community to the particular needs of a young and growing nation, unique in the composition of its people.
The principle of separation of the field of education was not due to a decline in religious beliefs, nor a minimizing of religious claims, but reflected a means of reconciling freedom in general with religious freedom.
The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressure in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, of religion from censorship and coercion, however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home indoctrination in the faith of his choice.
This development of the public school as a symbol of our secular unity was not a sudden achievement, nor attained without conflict... by 1875, the separation of public education from Church entanglements, of the State from the teaching of religion, was firmly established in the conscious of the nation. In that year, President Grant made his famous remarks to the Convention of the Army of Tennessee --
"Encourage free schools, and resolve that not one dollar appropriated for their support shall be appropriated to the support of any sectarian schools. Resolve that neither the State nor nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmarred with sectarian, pagan, or atheistic dogmas. Leave the matter of religion to the family altar, the church and the private school, supported entirely by private contributions. Keep the church and state forever separate."
...President Grant urged that there be written into the United States Constitution particular elaborations, including a specific prohibition against the use of public funds for sectarian education...It is not a question of religion, or of creed, or of party; it is a question of declaring and maintaining the great American principle of eternal separation between Church and State... The extent to which this principle was deemed a presupposition of our Constitutional system is strikingly illustrated by the fact that every State admitted into the Union since 1876 was compelled by Congress to write into its constitution a requirement that it maintain a school system 'free from sectarian control.'
However, the prohibition of commingling sectarian and secular instruction in the schools led to the rise of the time release movement,which may be attributed to Dr. George V. Wenner. The proposal was based on the assumption that the public schools unduly monopolized the child's time, and churches were entitled to their fair share of it. In 1905, the Interfaith Conference on Federation held in New York City urged that the public schools excuse students on Wednesday afternoon to attend Sunday school at churches. After considerable opposition, in 1914 Gary, Indiana inaugurated the scheme.
In general, undefined released time programs are not a matter of judicial Constitutional concern. However, if the public schools become involved in the way the religious instruction is carried out, the Court may be called upon to protect the right of religious freedom. In the school district of the McCollum case, the religious classes were conducted in regular class rooms of the public schools, by unpaid church teachers, but at the approval and supervision of the school district superintendent.
Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation,' not a fine line easily overstepped. The public school is at once the symbol of our democracy and the most persuasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart. 'The great American principle of eternal separation' -- Elihu Root's phrase bears repetition -- is one of vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity.
We renew our conviction that 'we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.' Everson v. Board of Education...If nowhere else, in the relation between Church and State, 'good fences make good neighbors.'
Justice Reed in dissenting notes that it is difficult to extract from the decision of the Court what it is about the time release plan reviewed that is unconstitutional. There was no compulsion for student to attend religious instruction.
McCullum emphasizes that although religion was inherent in the education systems of the nation when it was founded, through a process of historical evolution, it became the will of the people to restrict and disassociate religious instruction from the schools, in order to promote freedom in general, and to avoid the strife of religious sects. Therefore, the ruling of the Court does not impose the separation of religious instruction "upon unwilling states by force of superior law."
Where does the concept come from, that the Supreme Court can change the meaning of the First Amendment based on historical evolution?
Originally, the Constitution was based on English Natural Law. To understand this concept, note the stated basis of the Declaration of Independence --
When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.
WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights...
English Natural Law can be found in the writings of Samuel Rutherford in Lex, Rex. This work became the defining basis of the English Civil War, which transferred power from the King to Parliament. The mantra then was no taxation without representation, as it was with the Magna Carta and the American Revolution. And in English and American history, the common law was primarily based on Scripture, best represented by Blackstone's Commentaries. English Natural Law finds all law has its source in God, and that judges discover and apply law but do not make law.
However, after Darwin developed his theory of evolution, the legal profession in America came to consider basing the law on a belief in God as stupid. A myth or fairy tale could no longer be used to establish jurisprudence, which now had to be considered a science. Jurisprudence had to be based on evolution, a historical process. Just as Marxism represented the scientific approach to government, based on historical evolution, the law also was gradually moving in particular directions, that an elite group of experts had to identify and establish.
A most fitting example of this new philosophy of jurisprudence is found in a famous legal commentary by Benjamin N. Cardozo, The Nature of the Judicial Process, published in 1921.
The following quotations illustrate Cardozo's point of view.
The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive, and it draws its generalizations from particulars. The process has been admirably stated by Munroe Smith: 'In their effort to give to the social sense of justice articulate expression in rules and in principles, the method of the lawfinding experts has always been experimental. The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice'... It goes on inch by inch. Its effect must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier... The changes, as they were made in this case or that, may not have seemed momentous in the making. The result, however, when the process was prolonged throughout the years, has been not merely to supplement or modify; it has been to revolutionize and transform. For every tendency, one sees to see a counter-tendency; for every rules its antinomy. Nothing is stable. Nothing absolute. All is fluid and changeable. There is an endless becoming... The problem remains to fix the bounds and the tendencies of development and growth, to set the directive force in motion along the right path and at the parting of the ways.
And Cardozo found natural law as an ancient system based on even more ancient theories.
The old Blackstonian theory of pre-existing rules of law which judges found, but did not make, fitted with a theory still more ancient, the theory of natural law... Recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives in little more than name. The law of nature is no longer conceived as something static and eternal.
Thus, before a separation of church and state was found in the First Amendment, a separation of God and the law was established in the American legal profession.
As my posting continues at this point of our review, I will consider further cases associated with the Establishment Clause.
M. Paul Webb