Murray v. Curlett , 228 Md. 239 ( 1962 )

Hornby, J.,

delivered the opinion of the Court.

This appeal presents the question of whether the daily opening exercises of the Baltimore City public schools—wherein the Holy Bible is read and the Lord’s Prayer is recited—violate the constitutional rights of a student and his mother who claim they are atheists.

The judgment appealed from is one for costs entered by the lower court after it had sustained without leave to amend the demurrer of the appellees (the Board of School Commissioners of Baltimore City and the president and other individual members thereof constituting the “Board”) to the petition of the appellants (William J. Murray, III, the “student,” and Madalyn E. Murray, the “mother” or “parent”) for a writ of mandamus. The writ was sought to compel the Board to “rescind and cancel” a rule (and a recent amendment of it) adopted by the Board in 1905, pursuant to the power and authority conferred on it by the State, concerning the opening exercise program in the public schools. The rule and amendment attacked is designated as § 6 of Article VI of the Rules of the Board, and reads as follows:

“Section 6—Opening Exercises. Each school, either collectively or in classes, shall be opened by the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord’s Prayer. The Douay version may be used by those pupils who prefer it. Appropriate patriotic exercises should [also] be held as a part of the general opening exercise of the school or class. Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon written request of his parent or guardian.”

The italicized portion of the rule was added by an amendment on November 17, 1960, in order to comply with an opinion rendered by the Attorney General (C. Ferdinand Sybert, now a member of this Court) at the request of the State Superintendent of Schools following a protest by the appellants to the effect that to require the atheistic student to attend the daily exercises was to compel him to participate in a religious training program that was offensive to him.

The petition, in addition to stating that the fourteen year old boy is a student in a public school and that the parent is a resident and taxpayer, further states that the practice under the rule had been to read from the King James version of the Bible and that the student, until the adoption of the amendment, was “required and compelled” to attend the reading program and to recite the Lord’s Prayer, but that when the amendment was made he was excused at the request of his mother from further attendance.

The petitioners, in contending that the mandatory rule contravenes their freedom of religion under the first and fourteenth amendments in that it violates the principle of separation between church and state,¹ claim that the enforcement of the rule “threatens their religious liberty” in one way or another; that the rule “subjects their freedom of conscience to the rule of the majority”; and that the rule, by equating moral and spiritual values with religious values has- thereby rendered their beliefs and ideals “sinister, alien and suspect” which tends to promote “doubt and question of their morality, good citizenship and good faith.”

It is further claimed that the amendment excusing the student from participating in or attending the opening program “in no wise negates or mitigates the violation and infringement of their constitutional rights”; that the exclusion of the student has caused him to lose caste, to be regarded with aversion, and to be subjected to reproach and insult; and that the practice “tends to destroy the equality of the pupils” and place him in a disadvantageous position with respect to other pupils.

In conclusion, the petitioners state that although they have requested a cessation of the practice, the use of the rule has not ceased, but has been continued, and that they are thereby harmed.

The Board demurred to the petition on the ground that it did not state a good cause of action for which relief could be granted by way of mandamus. The lower court sustained the demurrer and dismissed the petition without leave to amend. In its memorandum opinion, the court stated two reasons for the action taken. The ultimate decision was based on the theory that the Board, in requiring that the Holy Bible be read or the Lord’s Prayer be recited each school day as a part of the opening exercises, with a proviso that objecting students could be excused, was acting in the exercise of discretionary power that the issuance of a writ of mandamus could not stay. But prior to that, the court had found that the facts alleged in the petition for the writ did not “spell out any violation” of the constitutional rights of the petitioners.

Arguments in this case were heard twice. The initial argument was heard by five of the seven judges of this Court on both questions presented by the appeal: (i) whether mandamus is a proper action in which to test the constitutionality of the school board rule; and (ii) whether the provisions of the regulation under attack violate a constitutional right of the petitioners. The reargument was heard by seven judges, one of whom was substituting for Judge Sybert, and in the order directing reargument, we limited the reargument to the constitutional questions raised by the petition. We were then of the opinion and we now hold that where the performance of a duty prescribed by law depends on whether the statute or regulation is constitutional or invalid, there is no reason why the question may not be determined on a petition for a writ of mandamus under such circumstances as are present in this case. Welch v. Swasey, 79 N. E. 745 (Mass. 1907); 38 Corpus Juris, Mandamus, § 681 b (1); 16 C.J.S., Constitutional Law, § 95. See also High’s Extraordinary Legal Remedies (3rd ed.), § 332 b, p. 325, where, in citing State v. District Board, 76 Wis. 177 (1890), it is said that “[m]andamus will lie against a board intrusted with the management of public schools to compel them to discontinue the reading of the Bible in such schools.” Moreover, there are a number of decisions in this state where the courts without challenge as to the propriety thereof have proceeded to determine a constitutional question preliminary to the grant or refusal of a writ of mandamus. See, for example, University v. Murray, 169 Md. 478, 182 Atl. 590 (1936); Williams v. Zimmerman, 172 Md. 563, 192 Atl. 353 (1937); Torcaso v. Watkins, 223 Md. 49, 162 A. 2d 438 (1960), reversed (on another ground and decided on merits), 367 U. S. 488 (1961).

The principal question is whether the demurrer was properly sustained. The appellees contend preliminarily that the petitioners have not shown they have standing to challenge the rule and the practice under it in the schools of Baltimore City.

If the petitioners lacked standing to sue, this would require affirmance even though the rule and the practice were unconstitutional. Since we find them to be constitutional, we shall assume the petitioners had standing to sue and proceed to discuss the reasons for our views as to constitutionality.

The essential question thus presented is whether the daily Bible reading and Prayer recitation program, at which attendance is not compulsory, is a violation of the “establishment of religion” and “free exercise” clause of the First Amendment (as applied to the States through the due process clause of the Fourteenth) or of the “equal protection” clause of the Fourteenth Amendment. We think that neither constitutional provision is violated, for, as we see it, neither the First nor the Fourteenth Amendment was intended to stifle all rapport between religion and government.

“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.”

Thus spoke Justice Douglas (at p. 313) in the majority opinion in Zorach v. Clauson, 343 U. S. 306 (1952).

The Supreme Court of the United States has not yet passed on either of the constitutional questions posed by this appeal. Yet, there are several decisions concerning the separation of Church and State which we think point the way and clearly indicate that a public school opening exercise such as this one—where the time and money spent on it is inconsequential ■—does not violate the religious clauses of the First Amendment or the equal protection clause of the Fourteenth Amendment, as would the teaching of a sectarian religion in a public school on school time and at public expense.

The first of the cases we have in mind is Everson v. Board of Education, 330 U. S. 1 (1947), where the Court, though it recognized that the clause against the establishment of religion was intended to erect “ ‘a wall of separation between church and state,’ ” held that the reimbursement of parents for the cost of transporting their children to parochial and public schools by bus did not violate the “establishment of religion” clause of the First Amendment because the purpose of the New Jersey statute was to provide safe transportation in the general public welfare.

In McCollum v. Board of Education, 333 U. S. 203 (1948), however, where the Illinois public schools and the machinery for compelling attendance thereat were used by sectarian teachers to give religious instruction in such public schools to those pupils who were required to attend the religious classes at the request of their parents, while the other pupils (who were not attending the religious classes) were compelled to attend secular classes instead of being released, the Court held in no uncertain terms that such practices fell “squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth).”

And four years later in Zorach v. Clauson, supra, the Court, though following the McCollum case, distinguished it nevertheless by stating that a “released time” program of a type different from that involved in McCollum was not unconstitutional. In New York the public schools are permitted to release students during school hours on the request of parents to go to classes off school premises for religious instruction, but those who are not so released stay on in public school classrooms. In holding that the program did not violate the First Amendment through the Fourteenth, the Court, after noting that the program did not involve religious instruction in public schools or the expenditure of public funds, nor the use of coercion to require public school students to go to religious classrooms, went on to point out (at p. 312) that if the First Amendment “in every and all respects” required a separation of Church and State, then:

“Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; ‘so help me God’ in our courtroom oaths—■ these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First' Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session : ‘God save the United States and this Honorable Court.’ ”

This then may well be the key to the difficult problem with which we are confronted.

We think there is little doubt that a decision in this case lies somewhere between the decision in McCollum and that in Zorach. In the McCollum case, where the “tax-established and taxsupported public school system [was utilized] to aid religious groups to spread their faith,” the released time program was unconstitutional. And, in the Zorach case, where the public schools did no more than “accommodate their schedules to a program of outside religious instruction,” the program was constitutional. It is to be noted, however, that both programs were conducted during school hours, though one involved the use of state funds and the other was at the expense of the churches. But, here, where the use of school time and the expenditure of public funds is negligible, we think the daily opening exercises of the schools in Baltimore City are in the same category as the opening prayer ceremonies in the Legislature of this State and in the Congress of the United States, in the public meetings and conventions which are opened with prayers or supplications to God, and in the formal call of court sessions by the crier in State and Federal courts. For these reasons, and particularly because the appellant-student in this case was not compelled to participate in or attend the program he claims is offensive to him, we hold that the opening exercises do not violate the religious clauses of the First Amendment.

With regard to the effect of having been excused from attending the opening exercises, we think it is significant that the Supreme Court, in School District of Abington Township v. Schempp, 364 U. S. 298 (1960), ordered per curiam that the judgment below be vacated and remanded the case to the district court for further proceedings, after it was learned that the Pennsylvania law had been so amended as to provide for the excusing of those students who objected to participating in a school opening ceremony quite similar to that in Baltimore City. It seems to us that the remand of this case at least indicated that the use of coercion or the lack of it may be the controlling factor in deciding whether or not a constitutional right has been denied. In reaching this conclusion we are not unmindful that the District Court for the Eastern District of Pennsylvania has, upon the remand, reheard the case, and again held (in an opinion by John Biggs, Jr., Circuit Judge, reported in 201 F. Supp. 815 [1962]) that the Pennsylvania statute is not constitutional despite the fact that objecting students could have been excused on the request of their parents, but we do not find the decision on remand persuasive and decline to follow it. Moreover, we think it is clear that the case at bar is not governed by the McCollum case on the question of compulsory participation, even though McCollum was “followed” in Zorach as well as in Tor caso on the “separation of church and state” point. In McCollum, there was a degree of compulsion, but( in this case, as in Zorach, all compulsion has been removed so far as attendance of the appellant-student at the opening exercises is concerned.

Furthermore, we are not convinced that Torcaso v. Watkins (367 U. S. 488) has any bearing on our problem. True, it is a case involving the separation of church and state, but we think it is clearly distinguishable from the instant case. There, in holding that “neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion,’ ” the Court went on to say (at p. 495) that the fact “that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution.” In that case the Court was concerned with the compulsion which required a non-believer to profess a belief in God in order to qualify for public office. The present case, however, as has been pointed out, is completely devoid of any compulsion or coercion to attend the school opening exercises. Nor do we find any sustenance for the appellant-student in the Sunday Blue Law cases, including McGowan v. Maryland, 366 U. S. 420 (1961), which was cited at the reargument.

The Bible reading and Prayer recitation programs in the public schools of other states, at which attendance was not compulsory, have been held to be valid by the appellate courts of such states. In an early case, Church v. Bullock, 109 S. W. 115 (Tex. 1908), the Court, in upholding a resolution stipulating that students should be present at, but were not required to participate in, the public school exercises in which the Bible was read and the Lord’s Prayer was recited, held that the program did not contravene the constitutional provision against the use of public funds to support sectarian religion. In the case of People ex rel Vollmar v. Stanley, 255 Pac. 610 (Colo. 1927), the Court, although stating that children could not be required against the will of their parents to attend the reading of the Bible in public schools, nevertheless held that the Bible reading ceremony could not be prohibited altogether. In a comparatively recent case, Doremus v. Board of Education, 75 A. 2d 880 (N. J. 1950), appeal dismissed 342 U. S. 429 (1952), the Supreme Court of New Jersey, in observing that the First Amendment did not prohibit the recognition of God, held that the noncompulsory practice of reading the Bible and reciting the Lord’s Prayer, in conformity with the applicable statute, did not constitute the establishment o£ religion or prohibit the free exercise thereof. And the recent case of Engel v. Vitale, 10 N. Y. 2d 174, 218 N. Y. S. 2d 659 (1961), presently pending in the Supreme Court of the United States, the Court of Appeals of New York affirmed by a divided court a decision of the Appellate Division (206 N. Y. S. 2d 183) holding that the noncompulsory daily recitation of the “regents prayer” ² in the public schools was not violative of either the state or federal guarantee of freedom of religion. See also Donahoe v. Richards, 38 Me. 379 (1854); Moore v. Monroe, 20 N. W. 475 (Iowa 1884); Pfeiffer v. Board of Education, 77 N. W. 250 (Mich. 1898); Billard v. Board of Education, 76 Pac. 422 (Kan. 1904); Hackett v. Brooksville Graded School Dist., 87 S. W. 792 (Ky. 1905); Wilkerson v. City of Rome, 110 S. E. 895 (Ga. 1922); Kaplan v. Independent School Dist., 214 N. W. 18 (Minn. 1927); and Lewis v. Board of Education, 285 N. Y. S. 164 (N. Y. Misc.), modified 286 N. Y. S. 174 (App. Div.), rehearing denied 288 N. Y. S. 751 (App. Div.), appeal dismissed 12 N. E. 2d 172 (Ct. of Apls. 1937), for other cases that have sustained the reading of the Bible and the recitation of prayers, including the Lord’s Prayer, in public schools. And see the annotation in 45 A.L.R. 2d 742.

We come now to the other constitutional question as to whether the appellant-student has been denied the equal protection of the laws guaranteed to him by the Fourteenth Amendment. He relies on Brown v. Board of Education, 347 U. S. 483 (1954), declaring as unconstitutional the segregation of the races in public schools, to support the theory that his self-exile from the opening exercises is having a deleterious effect on his relationship with other students in the school. The short answer to this claim is that the equality of treatment which the Fourteenth Amendment affords cannot and does not provide protection from the embarrassment, the divisiveness or the psychological discontent arising out of non-conformance with the mores of the majority. Cf. Footnote 7 to Zorach v. Clauson, supra, at p. 311 of 343 U. S. And see Engel v. Vitale, 191 N. Y. S. 2d 453 (Spec. Term 1959). We hold that the opening exercises do not violate the equal protection clause of the Fourteenth Amendment.

Inasmuch as the Supreme Court has not yet spoken with respect to the Bible reading and Prayer recitation ceremonies at school opening exercises, we think we are bound by what we understand is the effect of McCollum as it is explained and expanded in Zorach until such time as the Court speaks further in this uncertain area. So, having decided that the school opening exercises in Baltimore City are not violative of either the First or Fourteenth Amendments, we hold that the demurrer as to both appellants was properly sustained.

For the several reasons stated herein, the judgment will be affirmed.

Judgment affirmed; appellants to pay the costs.

1 . The petitioners also contended that the rule was contrary to the provisions of the Code (1957), Art. 77, § 203, proscribing the selection of textbooks of “a sectarian or partisan character,” but, other than stating in their brief that they objected to the conduct of religious teachings, whether sectarian or non-sectarian, in public schools, they did not pursue this contention on appeal.

2 . This prayer which is recited following the pledge of allegience to the flag at the beginning of each school day is worded as follows: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”