Abington v. Schempp (1963)

Abington v. Shemp?

(Image from All Posters)

I’ve been researching church/state separation, and I came across the case of Abington School Dist. v. Schempp from 1963. I’ve been aware of this case for a while, but I didn’t know much of the details. This is the famous case where Madalyn Murray O’Hair, the most-hated woman in America™, allegedly got prayer kicked out of every public school in all 50 states. The reality is actually more nuanced than that.

Two of the books I’m referencing here are The Living U.S. Constitution (by Padover and Landynski) and Why the Religious Right is Wrong about Separation of Church and State (by Rob Boston of Americans United for Separation of Church and State).

The Living U.S. Constitution Why the Religious Right is Wrong
(Buy Living Constitution or Religious Right is Wrong at Powell’s)

The first thing that jumped out at me is that I’ve been fighting this battle with only half an arsenal. I’ve been fixated on the Establishment Clause, but I’ve been ignoring the Free Exercise Clause.

First, here’s the entire First Amendment, to provide context:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s a very sweeping amendment. Many of the most important rights are all included in just that one paragraph. That’s why it was placed first (unless you’re Charlton Heston, in which case I guess this one was placed first as a diversionary tactic).

The Establishment Clause is:

Congress shall make no law respecting an establishment of religion…

The Free Exercise Clause is:

…or prohibiting the free exercise thereof

These two clauses are two sides of the same coin. The Establishment Clause prohibits the government from establishing, endorsing, or favoring one particular religion. The Free Exercise Clause protects your religion from government interference.

Abington v. Schempp

Now let’s dig into the court case. Madalyn Murray O’Hair’s role was important, but not nearly as great as both she and her detractors claimed. As Rob Boston puts it:

As history indicates, several states had already removed school-sponsored devotional exercises, some as early as 1890, long before O’Hair arrived on the scene. Secondly, O’Hair’s case was only one of three cases heard by the Supreme Court in 1962 and 1963 concerning school prayer.

Boston continues:

O’Hair … filed her case to block the mandatory recitation of the Lord’s Prayer in Baltimore public schools at the start of the school day. At the same time, Pennsylvania resident Ed Schempp was pursuing litigation to stop mandatory devotional Bible reading in Philadelphia-area public schools….

The Supreme Court agreed to hear both cases, under the combined name Abington Township School District v. Schempp. With a vote of 8 to 1, the Court struck down both religious exercises in their 1963 decision.

The Fundies are Revolting!

The right-wing reaction to this decision was (and continues to be) massive outrage. As Boston says:

Newspaper editorials denounced the ruling, and politicians across the country took up the cause of “restoring” prayer to public schools.

This is the same rhetoric we hear today every time the fundies perceive a slight against them, real or imaginary. The most disturbing thing about their reaction was their frequent claim that they had to “restore” prayer to the public schools. You can only use that word if prayer belonged there in the first place. It clearly does not. It’s like telling a cancer survivor that you need to restore the cancer to their body.

After this ruling, there were numerous attempts at a school prayer amendment to the Constitution. Fortunately, these attempts failed. I wish I could be equally confident that such attempts would fail today.

The Ruling

Now I want to examine the decision itself, to see what we can learn from it. The Supreme Court always looks at precedent, so the text of this decision can influence future separation cases.

Justice Thomas C. Clark wrote the majority opinion. He started off, quite ominously, with:

It is true that religion has been closely identified with our history and government. … In Zorach v. Clauson, … we gave specific recognition to the proposition that “[w]e are a religious people whose institutions presuppose a Supreme Being.” The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.

This isn’t too bad, yet. I have no quibble with the claim that most of the Founders had a god-belief. But Justice Clark continues:

This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, “So help me God.” Likewise each House of the Congress provides through its Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes the grace of God.

His inclusion of this text implies that this form of ceremonial deism is acceptable. This bodes ill for any attempts to remove God from the Pledge of Allegiance or our money. I contend that just because something has been done that way for a hundred years doesn’t make it right.

Further on, we read (citing the earlier case Zorach v. Clauson):

It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.… We do not agree, however, that this decision in any sense has that effect.”

This is an important distinction. Fundies claim that various groups (virtually any group that they are not members of) are demanding “special privileges”. The Court is saying here that they will not favor no-religion over religion. That is a fair application of the First Amendment. It allows religion to exist in public. Just where do you draw the line, though?

Later in that same paragraph, Justice Clark writes:

Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.

There is a move afoot by fundies to teach the Bible in the public schools (as “history” or some other silly notion). I’m planning an article on that sometime soon. The Court’s statement here shows their willingness to allow such behavior. (I think there was a court case that specifically addressed it. Anyone know the details?)

One of my favorite lines in the entire decision comes in the next paragraph:

While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.

Bingo! That nails, right there, what the fundies have been trying for quite a while now. Just like a virus invades a cell and takes over its machinery to produce more copies of itself, radical Christians are trying to take over the machinery of the State to produce more of themselves.

5 Responses to “Abington v. Schempp (1963)”

  1. ParrotLover77 Says:

    Excellent analysis. The opinion is dated, but not unfair. With the fundie-slanting radical SCOTUS we have now, I fear that this decision is in danger of being reversed. Let alone removing endorsement of religion from the pledge or money.

    Is the pledge itself a mandatory recitation anywhere anymore? It’s a nice piece of patriotic prose for when it was written, but I’d rather see it go completely in the school system.

    I also want to see the word “homeland” stricken from government offices (sounds too much like “fatherland” to me). Sigh, when will we get our country back from the crazies?!

  2. The Watcher Says:

    I agree with just about everything you wrote, and in fact, would have written it the same way. I only have one minor quibble: (Keeping in mind that this is really, REALLY picayune) the word “restore” isn’t being used improperly here; it has no inherent value judgment, although it may have some shades of positivity just by the context it’s most often used in. But strictly, the word only means to put something there that was there before and is now gone, regardless of whether it SHOULD or SHOULD NOT be. However, you point out correctly that just because something used to be there doesn’t mean it was a good idea then OR now. You could argue to “restore” something that doesn’t belong, like cancer to a survivor, and it would sound weird, but wouldn’t technically be wrong.


    Parrot Lover, I’m curious to know: why do you feel the current Supreme Court is “fundie-slanting” and “radical?” While I don’t agree with their decision in the “Bong Hits 4 Jesus” case, or on the issue of timing to bring a sex discrimination suit, but I wouldn’t call either of those decisions “radical.” Sure, they’re more conservative than I’m comfortable with, but I think it’s a bit of a leap to start calling them “radical.”

    If those decisions are “radical,” what would a (hypothetical) court be called if it ruled that wives were their husbands’ property? I think we would have a long, long way to fall before we could start making such acidic accusations.

  3. Brian Says:

    I want to touch on a couple of things.

    First, about our current Supreme Court. I am worried that this particular court, which has already shown, with regard to legal precedent, a, well, unprecedented tendency to ignore it, something previous courts have largely refrained from doing. We are one death away from having a very conservative majority on the bench for many years, perhaps decades to come. This will be Bush’s worst, most lasting legacy, I fear. And even though the senate is now in Democratic hands, does anybody here think they’ll summon the spine to oppose the worst president in modern history? I would not bet on it.

    As an aside, a few months ago I remember reading somewhere (I can’t remember) about the ability of either the President or Congress to increase or reduce the number of Supreme Court Justices. We haven’t always had nine, which I didn’t know. I obviously does not happen often, but it’s an interesting thing to think about nonetheless.

    As I read the first Amendment, I take from it that the government is to be absolutely neutral with regard to religion, or the lack thereof. This seems pretty straightforward, and is easily acceptable, unless you have an agenda to push, like dominionist, evangelical, fundie faith-heads. As an athiest, I do not want the government taking my side. I only want it to guarantee I can live my life, and raise my children, in a manner as free of religion as I could reasonably expect to get. To my knowledge, no prominent athiest is clamoring for anything more than the comfort of knowing we’ll be left alone, and that the religious zealots will not be able to enforce their crazy beliefs on anyone who doesn’t want them. As I said, a rational person can grasp this and is perfectly comfortable with it. Fundies are not, as we all know, rational in any way.

    As for teaching the Bible in school, I think it ought to be done, but under different circumstances than fundies would like. In college I took two history courses on the bible, one for the old testament and one for the new. The professor was a delightfully gruff agnostic who told us as we reviewed the course syllabus that we would be dissecting the bible mercilessly to find out how it came to be. The looks on the faces on the Campus Crusaders for Christ who took the class thinking this would be a puff piece on their favorite book was priceless, but that’s not why I think a course like this would be a good idea. Learning about the bible and its own peculiar history is one of the best arguments around for not being a christian. It is certainly one big reason why I’m an athiest. If approached critically, its not too much to suggest such a course would do much to curtail rampant religiosity amongst our kids. But who am I kidding? Christian parents would torch the school and lynch the teacher before they’d allow their precious bible to be treated with anything more than kid gloves.

  4. Ichneumon Says:

    You write, “Many of the most important rights are all included in just that one paragraph. That’s why it was placed first”. Um, no. What is now the First Amendment was actually the third amendment on a list of proposed amendments. The first two failed to pass, so this one just ended up first in the Bill of Rights by happenstance, not by plan or primacy.

  5. Ron Britton Says:


    I wasn’t aware of that. Well, its position is fortuitous. I consider it the most important.