Municipalities would not be permitted to render police or fire protection to religious groups.
The New York Court of Appeals declined to grant a trial on this issue, noting, inter alia, that appellants had not properly raised their claim in the manner required by state practice. And, after all, if we concede to the State power and wisdom to single out 'duly constituted religious' bodies as exclusive alternatives for compulsory secular instruction, it would be logical to also uphold the power and wisdom to choose the true faith among those 'duly constituted.' No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classrooms of the public schools. McCollum v. Board of Education, 333 U.S. 203 , distinguished. Dissent.
The nullification of this law would have wide and profound effects. (a) By this system, New York has neither prohibited the “free exercise” of religion nor made a law “respecting an establishment of religion” within the meaning of the First Amendment. (Emphasis supplied.) See Everson v. Board of Education, 330 U. S. 1; McCollum v. Board of Education, supra. 219—253; Parsons, The First Freedom, pp. 343 U. S. 310-315.
In each case the teacher, in order to make sure the student is not a truant, goes further and requires a report from the priest, the rabbi, or the minister. The churches make weekly reports to the schools, sending a list of children who have been released from public school but who have not reported for religious instruction.
[6] The present record indeed tells us that the school authorities are neutral in this regard and do no more than release students whose parents so request. The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released-time program are compelled to attend. If every one is free to make what use he will of time wholly unconnected from schooling required by law—those who wish sectarian instruction devoting it to that purpose, those who have ethical instruction at home, to that, those who study music, to that—then of course there is no conflict with the Fourteenth Amendment. When constitutional issues turn on facts, it is a strange procedure indeed not to permit the facts to be established. Timothy J. O'Neill. The briefs and arguments are replete with data bearing on the merits of this type of 'released time' program. A student need not take religious instruction. It was our view at the time that the present type of 'released time' program was not prejudged by the McCollum case, a conclusion emphasized by the reservation of the question in the separate opinion by Mr. Justice Frankfurter in which Mr. Justice Burton joined. Here schooling is more or less suspended during the “released time” so the nonreligious attendants will not forge ahead of the churchgoing absentees. The constitutional standard is the separation of Church and State. A number of Justices just short of a majority of the majority that promulgates today's passionate dialectics joined in answering them in Illinois ex rel. hand of government. When such is the case, there are weighty considerations for us to require the State court to make its determination only after a thorough canvass of all the circumstances and not to bar them from consideration. No more than that is undertaken here.
A student is released on written request of his parents. The case is here on appeal.
There is much talk of the separation of Church and State in the history of the Bill of Rights and in the decisions clustering around the First Amendment. Brown v. Western R. of Alabama, 338 U. S. 294. This postcard, circa 1930-1945, urges parents to teach their children religion. 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.”.
Here the sole question is whether New York can use 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. Mr. Charles H. Tuttle, New York City, for appellee Greater New York Coordinating Comm. The Petitioners, Zorach and other taxpayers and residents of New York City (Petitioners), brought suit challenging the constitutionality of a “released time” program, which allowed children to leave school, with parental permission, for religious instruction. The deeply divisive controversy aroused by the attempts to secure public school pupils for sectarian instruction would promptly end if the advocates of such instruction would content to have the school “close its doors or suspend its operations”?that is, dismiss classes in their entirety, without discrimination?instead of seeking to use the public schools as the instrument for securing attendance at denominational classes. If in fact coercion were used, if it were established that any one or more teachers were using their office to persuade or force students to take the religious instruction, a wholly different case would be presented. (Emphasis supplied.) Under our system of religious freedom, people have gone to their religious sanctuaries not because they feared the law, but because they loved their God. A Jewish student asks his teacher for permission to be excused for Yom Kippur.
And so far as interference with the “free exercise” of religion and an “establishment” of religion are concerned, the separation must be complete and unequivocal. Amherst, N.Y.: Prometheus Books, 1996. Syllabus. 100, and related cases. See Stromberg v. California, 283 U. S. 359; Cantwell v. Connecticut, 310 U. S. 296; Murdock v. Pennsylvania, 319 U. S. 105. Either way the government coerced attendance. In that case, the classrooms were turned over to religious instructors. 523—548; The Status of Religious Education In The Public Schools (National Education Association). Moreover, apart from that claim of coercion, we do not see how New York by this type of "released time" program has made a law respecting an establishment of religion within the meaning of the First Amendment. [Amicus Curiae Information from page 307 intentionally omitted]. Those not released stay in the classrooms. There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. * * * It is only when challenge is made to the share that the public schools have in the execution of a particular 'released time' program that close judicial scrutiny is demanded of the exact relation between the religious instruction and the public educational system in the specific situation before the Court.'.
^2 The First Amendment reads in relevant part, 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof'. It is as unconstitutional, in my view, when exerted by indirection as when exercised forthrightly. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. teachers neither employed nor paid by the state, the state did use its power to further the program by releasing some of the children from regular class work, insisting that those released attend the religious classes, and requiring that those who remained behind do some kind of academic work while the others received their religious training.
It takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion. The only significant differences between the New York and Illinois programs were that in the case of the Illinois program, the religious classes were taught on campus, and the school district superintendent approved the instructors. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. The spiritual mind of man has thus been free to believe, disbelieve, or doubt, without repression, great or small, by the heavy hand of government. address. Argued: Jan. 31 and Feb. 1, 1952. . See Judge Fuld, dissenting below, 303 N.Y. at page 185, 100 N.E.2d at page 475. 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. Our insistence on “a wall between Church and State which must be kept high and impregnable” has seemed to some a correct exposition of the philosophy and a true interpretation of the language of the First Amendment to which we should strictly adhere. . The same epithetical jurisprudence used by the Court today to beat down those who oppose pressuring children into some religion can devise as good epithets tomorrow against those who object to pressuring them into a favored religion. See, e.g., the regulations of the New York Commissioner of Education providing that, 'The courses in religious observance and education must be maintained and operated by or under the control of duly constituted religious bodies.' If we are to decide this case on the present record, however, a strict adherence to the usage of courts in ruling on the sufficiency of pleadings would require us to take as admitted the facts pleaded in the appellants' complaint, including the fact of coercion, actual and inherent. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct.
O'Neill, supra, n. 2, at pp. Just because the First Amendment of the Constitution prohibits the making of a law which will respect the establishment of religion, it does not necessarily follow that the government should be hostile toward the exercise of religion, which would also be an abrogation of the Free Exercise Clause of the same amendment. . See 198 Misc.