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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 [24 P.S. § 15–1516] 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 Torcaso 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 appellate student at the opening exercises is concerned.

Furthermore, we are not convinced that Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982, 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, 81 S. Ct. at p. 1684) that the fact “that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by a 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, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (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, 104 Tex, 1 109 S.W. 115, 16 L.R.A., N.S., 860 ( 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, 81 Colo. 276. 255 P. 610 (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, 5 N.J. 435, 75 A.2d 880 (1950), appeal dismissed 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (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 of religion or prohibit the free exercise thereof. And the recent case of Engel v. Vitale, 10 N.Y. 2d 174, 176, 218 N.Y.S. 2d 659, 176 N.E. 2d 579 (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 (11 A.D. 2d 340, 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, 64 Iowa 367, 20 N.W. 475 (1884); Pfeiffer v. Board of Education, 118 Mich. 560, 77 N.W. 250, 42 L.R.A. 536 (1898) ; Billard v. Board of Education, 69 Kan. 53, 76 P. 422, 66 L.R.A. 166 (1904) ; Hackett v. Brooksville Graded School District, 120 Ky. 608, 87 S.W.792, 69 L.R.A. 592 (1905) : Wilkerson v. City of Rome, 152 Ga. 762, 110 S.E. 895, 20 A.L.R. 1334 (1922) : Kaplan v. Independent School District, 171 Minn. 142, 214 N.W. 18, 57 A.L.R. 185 (1927); and Lewis v. Board of Education, 157 Misc. 520, 285 N.Y.S. 164, modified 247 App. Div. 106, 286 N.Y.S. 174, rehearing denied 247 App. Div. 873, 288 N.Y.S. 751, appeal dismissed 276 N.Y. 490, 12 N.E. 2d 172 (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.

2 This prayer which is recited following the pledge of allegiance 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."

[3, 4] 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, 74 S. Ct. 686, 98 L, Ed. 873 (1954), declaring as unconstitutional the segregation of the races in public schools, to support the theory that his selfexile 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 enibarrassment, the divisiveness or the psychological discontent arising out of nonconformance with the mores of the majority. Cf. Footnote 7 to Zorach v. Clauson, supra, at p. 311 of 343 U.S., 72 S.Ct. 679. And see Engel v. Vitale, 18 Misc.2d 639, 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.
BRUNE, Chief Judge (dissenting).

This suit for a writ of mandamus brought by a minor through his mother as next friend and by his mother as such and as a taxpayer seeks to bar from the public schools of the City of Baltimore “the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer.” Such reading from the Bible and/or use of the Lord's Prayer are required, either collectively or in classes, as a part of the opening exercises in the public schools of Baltimore under a rule of the Board of School Commissioners of that City adopted in 1905 and amended in November, 1960 by adding this provision: “Any child shall be excused from participating in the opening exercises upon the written request of his parent or guardian." The respondents in the suit are (or were) the members of the Board of School Commissioners of Baltimore City.

The petitioners allege inter alia : that the minor petitioner is a student at one of the public schools of Baltimore; ' that they are both atheists; that prior to the amendment of the above rule in 1960 the infant petitioner was required to attend the exercises prescribed by the rule and that since that amendment he has been excused from attending upon his mother's written request; that the reading of the Bible and/or of the Lord's Prayer constitute a sectarian exercise in the public schools of Baltimore and so contravenes the First and Fourteenth Amendments to the Constitution of the United States ; that the rule, as practised, places a premium on belief as against non-belief, that it pronounces belief in God as the source of all moral and spiritual values, equating those values with religious values, and renders “sinister, alien and suspect the beliefs and ideals of your Petitioners, promoting doubt and question of their morality, good citizenship and good faith”; and that the amendment to the rule permitting pupils to be excused upon request from the opening exercises neither negates nor mitigates the infringement of their constitutional rights; that the effect of the amendment is “merely an opportunity for exclusion" of the student petitioner from a stated school exercise which a majority of the pupils have been taught to revere, and that the exercise of that opportunity causes him “to lose caste with his fellows, to be regarded with aversion, and to be subjected to reproach and insult; and that such practice tends to destroy the equality of the pupils which the Constitution seeks to establish and protect."

The respondents demurred to the petition and their demurrer was sustained without leave to amend. Since the case comes before this Court on a ruling on demurrer, we must accept as true all well-pleaded facts. Mahoney y. Bd. of

3

3 At the time the suit was filed, this petitioner was a student at one public school, but it was stipulated that at the time of the argument he was a student at another public school of Baltimore, and that his change of school does not render the case moot. Cf. Doremus v. Board of Education, 342 U.S. 429, 432,433, 72 S.Ct. 394, 96 L.Ed. 475, where a child's graduation did render the case moot with regard to such child.

Supervisors of Elections, 205 Md. 325, 327, 106 A.2d 927, 108 A.2d 143. A diffculty here (as in many other cases) is to draw a sharp line between allegations of fact and conclusions to be drawn therefrom, and the further problem arises as to whether a conclusion should be accepted as alleged, should be tested on the basis of facts of which courts may take judicial notice, or should be determined only on the basis of proof. See, for example, the several views as to an allegation of coercion expressed in the majority opinion of Mr. Justice Douglas and in the dissenting opinions of Mr. Justice Frankfurter and of Mr. Justice Jackson in Zorach v. Ci on, 343 U.S. 306, 311-312, 321-322, 323, 72 S.Ct. 679, 96 L.Ed. 954.

The majority and minority agree that mandamus is an appropriate remedy to enforce the rights here asserted. A question has, however, been raised as to the standing of the petitioners to maintain the suit at all. The majority assumes, without deciding, that they have sufficient standing to do so, and those who join in this dissent are of the opinion that they do possess such standing. It may be that under Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, the adult petitioner's interest as a taxpayer would not be sufficient, though this case seems rather closer to Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (a taxpayer's suit distinguished in Doremus) because of her allegations with regard to the violation of her convictions by the practice complained of. Cf. Baker v. Carr, 82 S.Ct. 691 (decided March 26, 1962) upholding standing of voters to sue for redress of asserted malapportionment of representation in a state legislature. See also Jaffe, Standing to Secure Judicial Review : Public Actions, 74 Harv.L.Rev. 1265, esp. pp. 1298–1299 and comment on Everson and Doremus, pp. 1310–1311. In any event, the mother's interest as a parent and her son's own interest appear to be clearly sufficient under People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, and Zorach v. Clauson, 343 U.S. 306, 309 (n. 4), 72 S.Ct. 679, 96 L.Ed. 954. Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. See also Engel v. Vitale, 10 N.Y.2d 174, 218 N.Y.S.2d 659, 176 N.E.2d 579, in which none of the several opinions in the Court of Appeals of New York found, or even referred to, any want of standing on the part of the taxpayer-parents who brought suit to prevent the recital of the so-called Regents' prayer in a New York public school.

The principal contention of the appellants on the merits is that the reading from the Bible (whichever version may be used) and/or the recital of the Lord's Prayer in the public schools constitute violations of the provisions of the First Amendment, made applicable to the States under the Fourteenth Amendment (Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213), which proscribe any “law respecting an establishment of religion or prohibiting the free exercise thereof." The determination of the case depends upon the meaning and application of the Constitution of the United States. On such questions this Court accepts as binding the decisions of the Supreme Court of the United States and this is, of course, recognized by the majority of this Court in this case as well as by those of us who dissent. The rule is stated here simply because it greatly narrows the matters pertinent to the decision of this case. It would be merely a fruitless exercise in legal history for us to present one more re-examination of the origins and meaning of the religious freedom provisions of the First Amendment, if, as we think, the decisions of the Supreme Court conclude the question to be decided. In Everson v. Board of Education, supra, 330 U.S. at 15–16, 67 S. Ct. at 511, Mr. Justice Black, writing for the majority, said in part:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance, or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to crect a wall of separation between Church and State.'

4 No question is raised under the Constitution of this State. See Article 36 of the Maryland Declaration of Rights. Cf. Article 37 and Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982.

The dissents in that case did not challenge this interpretation of the coverage of the First Amendment as being too broad, but thought it was applied too narrowly to the facts of that case.

In People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L.Ed. 649, the Supreme Court adhered to Everson and held invalid under the First Amendment the Illinois “released time” program for religious education in the public schools of Champaign. Such instruction was given on school property and on school time by representatives of several different faiths. Students who did not wish to take such instruction were excused from attendance, but were required to pursue secular studies in some other part of the school building. Students released from secular studies were required to be present at the religious classes, and reports of their presence or absence were to be made to their secular teachers. There were present in McCollum both the use of tax-supported property for religious purposes and close cooperation between school authorities and the local religious council in promoting religious education. The majority opinion, written by Mr. Justice Black, stated, in part (333 U.S. at 209–210, 68 S.Ct. at 464):

“The operation of the state's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the taxestablished and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment *** as we interpreted it in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, [91 L.Ed. 711]."

Mr. Justice Frankfurter, who had dissented in Everson, filed an opinion in which Mr. Justice Jackson, Mr. Justice Rutledge, and Mr. Justice Burton, who had also dissented in Everson, joined, stating the view that the Illinois released time program there involved was invalid under the First Amendment. In it he said (333 U.S. at 213, 68 S.Ct. at 466): “We are all agreed that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.'' This view was recently reiterated by the Supreme Court in Torcaso v. Watkins, 367 U.S. 488, at 493494, 81 S.Ct. 1680, 6 L.Ed.2d 982, in reversing a judgment of this Court. In McCollum, Mr. Justice Jackson filed a separate concurring opinion in which he expressed agreement with the opinion of Mr. Justice Frankfurter and also concurred in the result reached by the Court. He expressed some reservations. First, he questioned whether the facts of the case established jurisdiction in the Supreme Court, and second, he thought that the Supreme Court should place some bounds on the demands for interference with local schools which that Court is empowered or willing to entertain. Mr. Justice Reed alone dissented.

In Doremus v. Board of Education, 5 N.J. 435, 75 A.2d 880, appeal dismissed, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, the New Jersey Supreme Court upheld a statute of that State providing for the reading, without comment, of five verses of the Old Testament at the opening of each public-school day. The Supreme Court of the United States dismissed an appeal from that judgment because of the lack of standing of the appellants to maintain the suit. One appellant was a parent of a child who had graduated, and the case was held moot with respect to that child. The claims of the appellants as taxpayers were held insubstantial and insufficient. Mr. Justice Douglas, with whom Mr. Justice Reed and Mr. Justice Burton agreed, dissented as to the latter holding and thought that the case should have been decided on the merits. The majority opinion intimated doubt as to whether the allegations of the complaint showed injury to the child (who had by then graduated) while she was a student, pointing out that there was "no assertion that she was injured or even offended * * * [by the Bible reading] or that she was compelled to accept, approve or confess agreement with any dogma or creed or even to listen when the Scriptures were read” and also that there was a stipulation that any child could be excused, at his or her parents' request, from the Bible reading and that no such request had been made. 342 U.S. at 432, 72 S.Ct. at 396. The Supreme Court did not, however, rest its dismissal of the appeal of the parent of this child on any ground other than mootness.

6 The opinion was written by Mr. Justice Black and six of the other members of the Court joined in it. Mr. Justice Frankfurter and Mr. Justice Harlan concurred in the result.

In Zorach v. Clauson, supra, the New York “released time" program for religious education for public school students was upheld. Attendance was not compulsory and the religious instruction was not given in school buildings nor was any public expense involved. Students were released on written request of their parents to leave the school premises to receive religious instruction or join in devotional exercises at religious centers, and reports of their attendance were furnished to school authorities by the religious bodies. Students not released to attend religious instruction or observances were required to remain in their classrooms. In the opinion of the Court in Zorach, Mr. Justice Douglas inade the often-repeated statement relied upon by the majority of this Court in this case and by this Court in Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438, reversed, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982, that "We are a religious people whose institutions presuppose a Supreme Being." 343 U.S. at 313, 72 S.Ct. at 684. The Court held, over vigorous dissents by Mr. Justice Black, Mr. Justice Frankfurter and Mr. Justice Jackson, that there was no violation of the principle of separation of chirch and state and that under the New York released time plan “the public schools do no more than accommodate their schedules to a program of outside religious instruction.” The Court then added: “We follow the McCollum case.” Id. at 315, 72 S.Ct. at 684.

Because of the different result in Zorach from that in McCollum, there was some relief (shared by this Court in Torcaso) that Zorach marked a retraction from McCollum. Since the decision of Torcaso by the Supreme Court there can hardly be any basis for such a continued interpretation of Zorach. The "wall of separation” between church and state recognized by both the majority and the dissenters in Everson, and described as “high and impregnable" in McCollum (to which case the Court expressed its adherence in Zorach), remains as high and impregnable as ever under Torcaso. Cf. McGown v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, and companion cases, Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S.Ct. 1122, 6 L.Ed.2d 536; Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551 and Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563.

There seems to be no substantial room for dispute that the reading of passages from the Bible and the recital of the Lord's Prayer are Christian religious exercises. This being so, the inclusion of such a reading or recital in the opening exercises of the public schools seems plainly to 'favor one religion and to do so against other religions and against non-believers in any religion. This, I think, is directly contra to the prohibition against any “law respecting an establishment of religion,” contained in the First Amendment, as that provision has been interpreted by the Supreme Court. See the Everson, McCollum, Torcaso and McGowan cases, all cited above. I find nothing inconsistent with the broad interpretation therein set forth in either Doremus or Zorach. I have already quoted from Torcaso as to the penetrating reach of the First Amendment. In McGowan, the Chief Justice said in the opinion of the Court (366 U.S. at 441-442, 81 S.Ct. at 1113) : “But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a 'broad interpretation * * * in the light of its history and the evils it was designed forever to suppress * * *.?" The Court then cited Everson, 330 U.S. at 14-15, 67 S.Ct. 504 and cited and briefly discussed McCollum as holding the religious instruction program there involved “to be contrary to the 'Establishment Clause.” The religious exercises here prescribed seem to me no less so. Here we are dealing not merely with released time, but with a prescribed religious exercise conducted by public school officials in public schools of the State, attendance at which schools (with exceptions not here important) is required (Code (1957), Art. 77, Sec. 231), during school time and in school buildings. Granting that the use of school buildings is not a determinative factor in distinguishing McCollum and Zorach, I think that, if present, it is a relevant factor in determining whether the State is lending its aid to promoting religion. There is, I think, a marked difference between an accommodation of the public school schedule to religious instruction and the inclusion of religious exercises in public school ceremonies. I think that here the State is lending its aid to religion and that McCollum is controlling.

6 If the exercises were confined to reading from the Old Testament, they would be both Jewish and Christian, but still religious.

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