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It is notable that President Wilson, in his letter to servicemen as shown here, did not attempt to divide minds on religion, or qualify his truly miraculous belief in the Bible, but gave utterance to a divine inspiration from the word of God, one God, supplying thereby the food for a continuing nurture of the souls, and conscience, of the servicemen.

Thus, one may understand the conscience of the people must, by divine guidance, prevail. The original fear of some of the early colonists of this country of a state-mandated religious atmosphere, has long since passed, and if it is necessary to reestablish the serenity and strength of our people in the guidance, reliance and strength of the Holy Writ, and our one God, and we are faced with a mathematical conclusion of unconstitutionality, then quickly I say, with humble and contrite forethought for all, and in the name of God in heaven, make the Constitution of the United States of America conform to the will and conscience of "the land, and all the inhabitants thereof," in these eternal United States of America. If we are to lead the world, then, under God, one God, we should acknowledge the truth in our every moment of mortal existence.

Re prayer in public schools.


MENOMONEE FALLS, WIS., November 3, 1962.

Chairman, Committee on the Judiciary,

U.S. Senate,

Washington, D.C.:

In response to your letter extending an opportunity to submit a written statement for the record, I offer the following thoughts:

I'm opposed to prayer in the public schools for several reasons:

1. Prayers are usually to a god or gods. And there is no God or gods. These are just creations from man's mind and feelings. Therefore the offering of adoration, confession, supplication, thanksgiving, etc., to nothing (God) is rather silly and even insane, if taken too seriously.

(a) No sense making liars out of our children. Let's protect their innocence and basic desire to be good and honest.

2. From history we have learned that once the separation of church and state is broken down and the basis for most religions allowed to enter (namely God and prayer) our public schools, then organized religions will start fighting each other to be the dominate or main influence. The Jews, especially, know this and therefore are opposed to public school prayers.

3. Before anything like this is imposed upon the children, it should be thoroughly discussed throughout the land. The merits of prayer should be argued. The basis (God) should be discussed, pro and con, etc. In other words, fair and' democratic discussion first.

4. The concept or hypothesis called God is not democratic and therefore should not even be considered in a democratic nation. The male Deity, Supreme Being, concept is a oneness or dictator concept.

One Supreme Being supposedly created the world all by himself (God the Father) and then played with and manipulated human beings and all life from then on. Really rather fantastic, isn't it?

If we are going to have any gods for whatever reason, we should have them be in line with our way of life. We should have a group of gods sitting equally around a celestial table of some kind, discussing, arguing, and finally coming to some mutual agreement about what to do about human beings, etc.

This would definitely be more democratic and therefore acceptable. The present God worshiped by most people is a jealous dictator (no gods before me). And if the people don't please this God-watch out. If they do, everything is all right. This is true or was true, also, of Hitler and Stalin, a couple of real life dictators, who got their ideas from the religious worship of a dictator called God.

Appropriately and logically organized religions are authoritarian and even totalitarian in nature and administrative structure, which again, is just the opposite of our free and democratic way of life. However, changes are taking place within organized religion in the United States. They are becoming more democratic, even Catholicism.

And the final step in the future will be to overthrow this dictator concept called God and substitute something else, maybe a group of gods elected or selected by the members of the various organized religions or


So let's not go backward and impose this restrictive, improvised dictator on our little children through the use of public prayers in the schools. Let's stand up and be grown men and women, without unnecessary fears, and refrain from insisting that our fears and distortions be imposed on our children. Sincerely,


[179 Atlantic Reporter, 2d Series]


No. 90


Mandamus action to compel a school board to rescind and cancel a rule pertaining to opening exercises in public schools wherein the Holy Bible was read and the Lord's Prayer recited. The Superior Court, Baltimore City, J. Gilbert Pendergast, J., entered judgment adverse to plaintiffs, and they appealed. The Court of Appeals, Horney, J., held that daily opening exercises of public schools wherein the Holy Bible is read and the Lord's Prayer is recited did not violate religious clauses of the First Amendment to the Federal Constitution, in view of fact use of school time and expenditure of public funds was negligible, and in view of fact provision was made for excusing a child from participating in the opening exercises upon written request of his parent or guardian.

Judgment affirmed.

Brune, C. J., and Henderson and Prescott, JJ., dissented.

1. Mandamus 11

If performance of a duty prescribed by law depends on whether the statute or regulation is constitutional or invalid, the question may be determined on a petition for a writ of mandamus.

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Daily opening exercises of public schools wherein the Holy Bible is read and the Lord's Prayer is recited did not violate religious clauses of the First Amendment to the Federal Constitution, in view of fact use of school time and expenditure of public funds was negligible, and in view of fact provision was made for excusing a child from participating in the opening exercises upon written request of his parent or guardian. U.S.C.A. Const. Amend. 1.

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Equality of treatment which the Fourteenth Amendment affords does not provide protection from embarrassment, divisiveness or phychological discontent arising out of nonconformance with the mores of the majority.

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Daily opening exercises of public schools wherein the Holy Bible was read and the Lord's Prayer recited did not violate constitutional rights of a student and his mother, who claimed they were atheists, to equal protection of the law as guaranteed by the Fourteenth Amendment to the Federal Constitution, even if student's self-exile based upon exercise of right granted him to be excused from opening exercises had a deleterious effect on his relationship with other students in the school. U.S.C.A. Const. Amend. 14.

Leonard J. Kerpelman, Baltimore, for appellants.

Harrison L. Winter, City Sol., and Philip Z. Altfeld, Asst. City Sol., Baltimore (Ambrose T. Hartman, Deputy City Sol., Baltimore, on the brief), for appellees. Reargued by Francis B. Burch, City Sol., and Philip Z. Altfeld, Asst. City Sol.

Russell L. Snodgrass, Baltimore, pro se filed brief amicus curiae.

Argued Nov. 14, 1961, before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

Reargued Jan. 9, 1962, before BRUNE, C. J., HENDERSON, HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ., and LESTER L. BARRETT, J., specially assigned. HORNEY, Judge.

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 of 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

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.


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.

[1] 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, 193 Mass. 364, 79 N.E. 745, 23 L.R.A., N.S., 1160 (1907); 38 Corpus Juris, Mandamus, § 681b (1) ; 16 C.J.S. Constitutional Law § 95. See also High's Extraordinary Legal Remedies (3rd ed.), § 332b, p. 325, where, in citing State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967, 7 L.R.A. 330 (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 A. 590, 103 A.L.R. 706 (1936); Williams v. Zimmerman, 172 Md. 563, 192 A. 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, 81 S.Ct. 1680, 6 L.Ed.2d 982 (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 in the majority opinion in Zorach v. Clauson, 343 U.S. 306, at p. 313, 72 S.Ct. 679, at p. 684, 96 L.Ed. 954 (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 onewhere 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 a public expense.

The first of the cases we have in mind is Emerson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (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 [N.J.S.A. 18:14-8] was to provide safe transportation in the general public welfare.

In People of State of Illinois ex rel. McCullum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (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 (343 U.S. at p. 312, 72 S. Ct. at p. 683) 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.

[2] 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 tax-supported 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, 81 S. Ct. 268, 5 L. Ed. 2d 89 (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

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