One Nation Under God: How Corporate America Invented Christian America (33 page)

Abington School District v. Schempp
stemmed from a 1949 statute requiring teachers in Pennsylvania's public schools to read “at least ten verses from the Holy Bible” to their classes each morning without comment. Instructors who failed to do so would be fired. Civil libertarians immediately objected but resolved to wait until the policy was implemented and a plaintiff came forward to challenge it. In November 1956, the Philadelphia ACLU received a letter from Ellory Schempp, a sixteen-year-old Unitarian enrolled in Abington Senior High School, in the suburbs north of Philadelphia. Schempp had protested the mandatory Bible reading in his school that fall, refusing to stand for the ceremony and instead sitting at his desk, reading a copy of the Koran. His homeroom teacher sent him to the principal's office; the principal sent him to the guidance counselor. (As he later joked, “I was clearly in need of psychological help.”) For the remainder of the school year, he was required to report to the guidance office during morning prayers. Schempp wrote his local ACLU “for any help you might offer in freeing American youth in Pennsylvania from this gross violation of their religious rights.” After six months of deliberation, the organization agreed to take his case.
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The lawsuit was filed in the spring of 1958 by Schempp's parents, on his behalf and on behalf of his younger siblings, Roger and Donna, who objected to the Bible reading requirements in the local junior high school. Faithful members of the Germantown Unitarian Church, the Schempps complained that the state statute interfered with their right to instill in their children only the religious values of their own choosing. “We hope this action will not be interpreted as an attack on religion or the Bible,”
Edward Schempp said. “We believe that random Bible reading and state control degrades religion. To us, religion is too precious, too important, and too personal to permit the state to meddle in it.” At the initial hearing, the electronics engineer asserted that the daily Bible readings were essentially a religious ceremony, an opinion backed by numerous witnesses who related that teachers and students alike called them the “morning devotions.” In terms of content, Schempp objected to Old Testament selections that detailed gruesome acts such as blood sacrifices and portrayed a “god of vengeance” that, his lawyers noted, was “contrary to the concept of the deity which he had endeavored to instill in his children.” His son argued that the Bible passages read in class advanced a number of beliefs—including the divinity of Christ, the immaculate conception, the Trinity, and the existence of an anthropomorphic God—that he did not hold as a Unitarian.
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In September 1959, a three-judge panel of the US District Court in Philadelphia ruled unanimously in favor of the Schempps. Brushing aside arguments that the Bible was somehow a “non-sectarian” work of literary or historical significance, the judges stated it was clearly “a religious document.” “The daily reading of the Bible,” they ruled, “buttressed with the authority of the State and, more importantly to children, backed with the authority of their teachers, can hardly do less than inculcate or promote the inculcation of various religious doctrines in childish minds.” State officials immediately appealed the ruling to the US Supreme Court but also swiftly amended the Bible reading requirements, allowing students and teachers to be excused if they wished. Because the statute had been changed, the Supreme Court returned the case to the district court for reargument. Edward Schempp testified that the exemptions did not satisfy him, because his children would be “labeled as oddballs” by classmates who, his lawyers explained, “were liable to lump all particular religious differences or religious objections together as atheism and that today the word atheism is often connected with atheistic communism” and thus “un-American.” In February 1962, the three judges again sided with the Schempps, ruling that the Bible reading requirements still violated the First Amendment. “There is religious establishment in this case,” they held, “whether the pupils are or are not excused from attendance at morning exercises.” In response, the state appealed again.
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As the
Schempp
case made its way to the Supreme Court, the ACLU attorneys worried it might have unwanted company. In Maryland, fourteen-year-old Bill Murray and his mother, Madalyn, filed suit against the Baltimore public schools' requirement that each day begin with “the reading, without comment, of a chapter of the Holy Bible and/or the use of the Lord's Prayer.” Unlike the Schempp family, who the ACLU believed were “good litigants” because they were sincerely religious and “attractive, well-balanced people,” the Murrays were outspoken atheists. In a court of law, the distinction was meaningless; in the court of public opinion, it mattered immensely. While her atheism worried lawyers, Madalyn Murray's reputation as a loose cannon gave them even greater pause. ACLU lawyers had originally represented her, along with some other parents, in a suit against her school board, but they soon parted ways. “We would not promise her that her name would be the first in the list of plaintiffs,” one lawyer recalled; “we were going to list them alphabetically. She refused, then, to work with us further.” Murray found a new attorney, but when he echoed the ACLU's conclusion that they should wait until the courts ruled on already pending cases such as
Engel
and
Schempp,
she demanded he proceed. “My position is this,” she wrote: “
The ACLU can go to hell, and take their opinions with them
.” Her lawyer promptly resigned. “I take
orders from no client
,” he wrote back. With a third lawyer at the helm, Murray finally proceeded with her suit. On the way, she asked the ACLU to pay for publishing her briefs, but the organization refused.
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Unlike the Schempps' suit, Murray's did not fare well early on. In April 1961, the Supreme Court of Baltimore City dismissed the complaints and sided with the school board. Judge J. Gilbert Pendergrast held that the Murrays, as avowed atheists, had no right to religious liberty. “One cannot practice his religion if he has no religion to practice,” the judge asserted. “If petitioners were granted the relief sought, then they, as non-believers, would acquire a preference over the vast majority of believers. Our government is founded on the proposition that people should respect the religious view of others, not destroy it.” Undeterred, Murray pressed ahead, securing a hearing before the highest judicial body in the state that fall. On April 6, 1962, just three days after the Supreme Court heard oral arguments in the
Engel
case, Maryland's Court of Appeals rendered a split decision in
Murray v. Board of School Commissioners of Baltimore City.
By a
narrow margin of 4–3, the majority sided with the school board. In a now familiar justification, they pointed to the prevalence of public religious rites in the state and nation.
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The Supreme Court heard oral arguments in
Schempp
and
Murray
on February 27 and 28, 1963. In the former case, the state's lawyer, Philip Ward, argued that reading the Bible was not a religious exercise. “We're teaching morality without religion, cut adrift from theology,” he insisted. “The people of Pennsylvania have wanted to do this, they have since the beginning wanted to bring these lessons in morality to the children.” They simply employed “a common source of morality, the Bible,” to reach that end. In this way, the Bible was part of the “tradition of this country.” Henry Sawyer, the Schempps' attorney, pressed back. “The New Testament is a teaching message,” he said. “It was highly controversial teaching then and, I submit to Your Honors, it's highly controversial teaching now. Men do not agree about these things.” Neither did they agree about the nation's religious tradition. “I think tradition is not to be scoffed at,” Sawyer said. “But let me say this very candidly. I think it is the final arrogance to talk constantly about ‘our religious tradition' in this country and equate it with the Bible. Sure, religious tradition.
Whose
religious tradition?” There were real differences among the various faiths, Sawyer pointed out, and insisting there was a single religious tradition that united them “suggests that the public schools, at least of Pennsylvania, are a kind of Protestant institution to which others are cordially invited.”
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The debate in
Murray
circled the same issues. Baltimore's city solicitor, Francis B. Burch, denied that there was anything religious in the recitation of Bible verses or the Lord's Prayer. Such practices merely had “certain salutary effects” in teaching morality and instilling discipline in students. Hugo Black, who, an observer recorded, was “obviously not impressed,” interjected: “Are you disavowing that the purpose of these exercises is to increase religious knowledge in the student?” Burch stumbled a bit, admitting that was certainly
a
purpose, but only one of many. A local school board, he insisted, had the right to determine the opening exercises in the schools it ran. Asked if he would object to the Book of Mormon being used where that faith predominated, he said if a local board so desired, that would be fine. “What you are arguing for, as I see it,” Black interrupted again, “is religious local option.” This line of questioning
continued when Burch's cocounsel, George W. Baker, took over. Earl Warren asked what would happen in a hypothetical school district in the new state of Hawaii that was 51 percent Buddhist and 49 percent Christian. If Buddhists dominated the board, the attorney replied, then they had the right to impose their religious views on the Christian minority. “Wouldn't it then be a contest,” William O. Douglas interrupted, “to see which church could get control of the school board?” The Court then turned to Leonard Kerpelman, the latest attorney for the Murrays, who ridiculed the suggestion that recitations of the Bible were not entirely religious. “The law recognizes no ‘somewhat,'” he said. “There is no such thing as a law which restricts religious liberty only ‘somewhat.'”
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When the justices gathered to deliberate the two cases on March 1, 1963, they found themselves revisiting a familiar issue, but with two new colleagues. Byron White, a former pro football player who had gone on to Yale Law School and then the Department of Justice, had replaced the broken-down Whittaker only two weeks after the oral arguments in
Engel.
Arthur Goldberg, a prominent labor lawyer and then secretary of labor, had been appointed to fill the vacancy created by Frankfurter's retirement. Though neither had taken part in the
Engel
deliberations, they soon understood that the case still had a firm hold on their colleagues. Warren announced he would affirm the lower courts' rulings striking down the state-ordered Bible reading as a violation of the First Amendment's establishment clause. Black, Douglas, and Clark quickly agreed. Harlan had doubts but signaled he too would affirm, as did Brennan. Stewart noted he would dissent once again, arguing that they should send the cases back to the states so they could “give every sect a chance to have religious exercises in schools including atheists.” But he found himself alone again, as both White and Goldberg voted to affirm. Goldberg acknowledged that the issues in the case were “much more religious” than the previous one, but that meant the need to avoid religious establishment was even more important. “Schools can't be opened to every sect,” he observed, according to Douglas's shorthand notes: “How about Black Muslims? How about screwball groups? You can't draw a line between viable ones—it would mean drawing a line that would interfere with Free Exercise. No better way to respect religion than to follow Vitale.”
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After the conference, Warren had to decide which of the eight justices in the majority would draft the opinion. “At best a nominal Baptist,” as one of his biographers has written, “Warren was nonetheless profoundly religious.” He held the Bible in high esteem, sending his children to Sunday school to ensure they were well versed in its wisdom and keeping a copy of his own beside his bed. Recognizing that a ruling against Bible reading could spark an even angrier reaction than
Engel,
he decided that Tom Clark's well-earned reputation as a “man of faith” made him the best spokesman. Raised Episcopalian, the Texan had converted to Presbyterianism upon his marriage. When he and his wife moved to Washington, they became active members in the National Presbyterian Church, with Reverend Edward Elson their new pastor. Clark took to heart his new denomination's traditional support for separation of church and state, believing that secular appropriations of prayer demeaned true religion. Equally important in Warren's eyes was the fact that during the public outrage over
Engel,
Clark had broken with tradition and publicly defended the decision. In a remarkable address to the American Bar Association in August 1962, Clark had reminded the lawyers—and, through the reporters in the room, the general public as well—that the Constitution demanded “that both state and federal governments shall take no part respecting the establishment of religion or prohibiting the free exercise thereof. ‘No' means ‘no,'” he told them, borrowing one of Hugo Black's favorite lines. “That was all the Court decided.”
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As he crafted his opinion, Clark did all he could to preempt criticism. First and foremost, he worked to push Madalyn Murray out of the spotlight. According to standard practice, Murray should have been the captioned plaintiff, as her case had been placed on the docket first. But Clark knew that having an outspoken atheist as the face of the decision would be toxic, and so he moved the Unitarian Edward Schempp to the lead position instead. Clark likewise downplayed Murray's role in the decision itself. His first handwritten draft, in fact, made no mention of the Murrays' atheism at all, focusing instead on the Schempps' religious objections. The trial record showed how “Edward Schempp and the children testified as to specific religious doctrines purveyed by a literal reading of the Bible ‘which were contrary to the religious beliefs which they held and to their
familial teaching.'” Their objections stemmed not from any disrespect for religion but from a desire to worship respectfully in their own way.
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