Abington School District v. Schempp

Abington School District v. Schempp, 374 U.S. 203 (1963), argued 27–28 Feb. 1963, decided 17 June 1963 by vote of 8 to 1, Clark for the Court, Brennan, Douglas, and Goldberg concurring, Stewart in dissent. Schempp was essentially a rerun of the Court's decision the previous term in Engel v. Vitale (1962). In the earlier case, the Court identified a constitutional violation and struck the offending legislation; in Schempp, it reasserted its logic and result as if to say, “We meant what we said.” Schempp repeats both the Engel holding—the Establishment Clause forbids public schools from sponsoring religious practices akin to prayer—and its coalition of justices. This time, however, Justice Tom C. Clark (Presbyterian) wrote for the majority, and the Court's religious diversity—Arthur Goldberg (Jewish) and William Brennan (Catholic)—was made manifest in separate concurring opinions.

Schempp came in the wake of a hostile response to Engel, which raged throughout the summer of 1962 and into the Court's next term. Representative L. Mendell Rivers accused the Court of “legislating—they never adjudicate—with one eye on the Kremlin and the other on the NAACP.” Cardinal Spellman said it had struck “at the very heart of the Godly tradition in which America's children have for so long been raised.” Representative Frank Becker called Engel “the most tragic [ruling] in the history of the United States,” and offered an amendment to reverse this (and, later, the Schempp) decision (see Constitutional Amending Process). According to the Gallup Poll, 76 percent of Americans supported this approach. All told, 150 such amendments were offered by 111 members of Congress, with Becker's coming to a vote but losing in the House of Representatives.

The Schempp decision actually decided two cases: itself and Murray v. Curlett (1963). The former was brought by the Schempps—a non‐Jewish family sought out by the ACLU, which argued the case—who objected to a Pennsylvania law requiring that ten verses of the Bible be read at the opening of each public school day. The latter was brought by Madalyn Murray and her son William, professed atheists, who attacked a Baltimore statute providing for the “reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer” in opening exercises in city schools. Both of these cases saw the same type of amicus curiae group participation as in Engel, with separationists opposing the prayers and accommodationists supporting them.

Justice Clark's majority opinion was light on history and long on the importance of religion in American life. Its conclusion, however, was the same as that tendered the year before: the Constitution forbids state establishment of religion, prayer is religion, and thus prayer in public schools is constitutionally impermissible. For the first time, a “test” for Establishment Clause questions was formally articulated by the Court. To pass constitutional muster, legislation must have “a secular legislative purpose and a primary effect that neither advances nor inhibits religion” (p. 222). The fact that the religious material here was not, like that in Engel, composed by the state, was constitutionally inconsequential; the “wall of separation” was real and was to be kept high.

The concurring opinions were unexceptional, save for the religious affiliations of the justices who wrote them and their somewhat self‐consciously apologetic tone; it was as if they sought to reassure the nation that the Court's posture was not antireligious. Most noteworthy was Brennan's seventy‐four page opus reviewing the history of the First Amendment—and judicial and legislative glosses on it—which concluded that government may neither foster nor promote religion.

Justice Potter Stewart's dissent reasserted themes he initially voiced in Engel. Charging the majority with hostility (not neutrality) to religion, he would have upheld the practices as a legitimate accommodation. In addition, Stewart noted that the separationist doctrine enunciated by the Court in the two prayer cases posed a difficult interpretive conundrum: if states sought to protect free exercise rights (say, by paying military chaplains to minister to the needs of troops in battle zones) they could run afoul of the Establishment Clause by pursuing policies that were primarily (if not solely) religious in purpose. He contended that his approach, stressing the preeminence of free exercise values, would avoid this dilemma.

See also Religion.

Joseph Kobylka