Thomas Jefferson wrote, in a famous letter in 1802, that the religious clause of the First Amendment was intended to create ‘‘a wall of separation’’ between church and state. Zorach v. Clauson is a significant case because the Court says that government must be separate from religion, but not hostile or unfriendly toward it.
The earliest cases on the topic were Cochran v. Louisiana (1930)—the state provided free textbooks to parochial school students on the same basis as it supplied books to public school students—and Everson v. Board of Education (1947)—a local school board subsidized the cost of public transportation for parochial school students on the same basis as public school students. In both cases, the Court reasoned that the primary beneficiaries were the students, not the church, so the wall of separation was not breached. The Everson decision has a comprehensive historical review of the establishment clause. Everson also holds that the First Amendment’s two religious proscriptions apply to the states because of the Fourteenth Amendment.
The next cases to reach the Supreme Court dealt with challenges to nonfinancial assistance to religious education programs—so-called ‘‘released time’’ programs. An Illinois statute allowed religious teachers to come into public schools during the school day once a week to provide religious instruction. Parents could request that their children attend such a religious class. Students without such parental consent would go elsewhere in the school for other activities. In the 1948 case of McCollum v. Board of Education, the Court struck down this program, saying that the combination of the use of tax-supported school buildings and the school system’s administration of attendance at these classes breached the required wall of separation.
In Zorach v. Clauson, the Court considered a New York program with one feature that differed from the Illinois arrangement. Here, parents could elect to have their children leave the public school forty-five minutes or an hour before the end of the school day to attend religious education classes at a religious institution. Students not participating in this program stayed in school for secular activities. The religious schools would report weekly about the attendance of students who were released to attend the religious classes.
The Supreme Court upheld the constitutionality of the New York program, distinguishing McCollum by pointing out that the religious instruction was taking place outside the public schools, and that they saw no evidence that students were coerced to participate.
Justice Douglas said that the First Amendment separation of church and state should be absolute, but that meant only that there should be no interference with the ‘‘free exercise’’ of religion nor should there be an ‘‘establishment’’ of religion. He summarized this argument with an oft-quoted phrase: ‘‘We are a religious people whose institutions presuppose a Supreme Being.’’ Douglas saw no problem with a government program that ‘‘respects the religious nature of our people and accommodates the public service to their spiritual needs.’’
Douglas’s decision is interesting because it anticipated many cases that have more recently arisen. Douglas argued that if the Court were to disallow the New York program, one might carry the concept of separation to its logical extreme:
Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; ... ‘‘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.’’
Three justices dissented. Justice Black said that when the state used ‘‘its compulsory education laws to help religious sects get attendants presumably too unenthusiastic to go unless moved to do so by the pressure of this state machinery.... This is not separation but combination of Church and State.’’
Justice Frankfurter dissented because he thought it was likely that teachers pressured students to participate in the released time programs. Frankfurter said that the majority opinion relied on the absence of evidence of coercion in upholding the program. However, he pointed out, the trial court had barred any testimony on the subject of coercion, saying it was not relevant to the constitutional issue. This meant that the majority opinion was based on a faulty premise.
Justice Jackson noted that no real educational activity occurred during the released time, in order to prevent the students who stayed in school from forging ahead of those who attended the religious programs. Compulsory attendance in a school where no meaningful education was occurring meant, said Jackson, meant that the school would serve ‘‘as a temporary jail for a pupil who will not go to Church.’’
Released time programs were probably at their peak in popularity at around the time of the decision in Zorach v. Clauson, with 2 million students nationwide participating in such programs. These programs have steadily declined since then, but several organizations that promote released time estimate that today there are still about 250,000 students in released time programs, in 1,000 school districts.
ELI C. BORTMAN
Cases and Statutes Cited
See also Application of First Amendment to States; Establishment Clause (I): History, Background, Framing; Establishment Clause: Theories of Interpretation; Establishment of Religion and Free Exercise Clause; Pledge of Allegiance (‘‘Under God’’); Release Time from Public Schools (For Religious Purposes)