Zorach v. Clauson Primary Source eText

Primary Source

A young boy holds a rosary while attending services led by Father Peyton of the Congregation of the Holy Cross, 1952. © HULTON-DEUTSCH COLLECTION/CORBIS. REPRODUCED BY PERMISSION. A young boy holds a rosary while attending services led by Father Peyton of the Congregation of the Holy Cross, 1952. © HULTON-DEUTSCH COLLECTION/CORBIS. REPRODUCED BY PERMISSION. Published by Gale Cengage © HULTON-DEUTSCH COLLECTION/CORBIS. REPRODUCED BY PERMISSION.

Supreme Court decision

By: William O. Douglas, Hugo L. Black, and Robert H. Jackson

Date: April 28, 1952

Source: Douglas, William O., Hugo L. Black, and Robert H. Jackson. Zorach v. Clauson. 343 U.S. 306. Available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=sear... ; website home page: http://www.findlaw.com (accessed February 28, 2003).

About the Authors: William O. Douglas (1898–1980) chaired the Securities and Exchange Commission in 1939, when he became, at forty, one of the youngest men ever appointed to the Supreme Court. He served over thirty-six years, the longest of any justice, retiring in 1975. Many thought Douglas would be pro-business, but he devoted himself to the defense of the Bill of Rights and freedom of speech.

Hugo L. Black (1886–1971) served two terms as a U.S. senator from Alabama and was known as a New Deal liberal. His 1937 appointment to the Supreme Court roused controversy when his past membership in the Ku Klux Klan became public, although he had long ago left the group. His term was generally distinguished by his support of civil rights.

Robert H. Jackson (1892–1954) was U.S. attorney general when President Franklin Roosevelt (served 1933–1945) appointed him to the Supreme Court in 1941. He took a leave from the Court in 1945 to serve as U.S. chief counsel at the Nuremberg war crimes trial. He was known for his strong defense of religious freedom and civil rights.


The First Amendment to the Constitution reads, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Thus, under the First Amendment the government is prohibited from establishing an official religion or favoring one religion over another. The government is also prohibited from interfering with an individual's practice of religion. The relationship between state and local governments and religious organizations, however, has often come into question. Since 1925 it has been held that the First Amendment protects individuals' religious freedom from state legislation as well as federal, but the degree of separation between state and church is often tested, and such cases have continually been brought before the Supreme Court.

Efforts to intensify or to create a state's support of religion grew after World War II (1939–1945), as widespread nuclear-age fears stimulated a resurgence in church attendance. Blocs of parents advocated varying levels of state support for religious instruction for their school-aged children. One way states provided such support was by reimbursing parents who transported their children to parochial (church-affiliated) schools, since the states were already transporting other public and private school pupils. This program was ruled constitutional in 1947 by the Supreme Court in Everson v. Board of Education of Ewing Township. A program in an Illinois school system that allowed religious education in the school buildings during school hours, however, was deemed to be too much establishment of religion by a state in McCollum v. Board of Education (1948).

Since the Supreme Court in McCollum had prohibited religious teachers from teaching in public schools during school hours, New York City decided to try a "released time program," in which children were allowed to leave school to attend religious classes away from school property (generally at parochial schools). When the program was challenged, the New York courts upheld it. In 1952 this issue was appealed to the U.S. Supreme Court in Zorach v. Clauson.


The Supreme Court upheld the released time program, commenting that it was different than the program allowing education in the schools, as the religious education was off school grounds and no state funds were involved. The decision was decided with a majority of six upholding and three dissenting. Justice William O. Douglas expressed the majority opinion that it was not the intent of the First Amendment to create an environment hostile to religion, and as the U.S. population is, on the whole, a religious one, efforts should be made to encourage and cooperate with religious institutions. Justice Robert H. Jackson's dissent argued that the school program promoted religion.

After the Zorach case, the next major controversy over freedom of religion and the separation of church and state—one that is still raging today—was over prayer and Bible reading in public schools. In the 1962 case of Engel v. Vitale, the Court struck down the New York practice of requiring students to begin the school day with a nondenominational prayer. The Court held that this promoted religion in general, and since part of the freedom of religion was the freedom not to have a religion, the New York practice of daily prayer in public schools violated

the First Amendment right. The next year, the Court struck down a Pennsylvania law that required a daily Bible reading.

Since these decisions, many constitutional amendments have been proposed to either require or allow prayer and Bible readings in schools, but none have passed Congress. State support for religion returned to the Court in Board of Education v. Allen in 1968, when the Court upheld a New York program lending free textbooks to students in private (including parochial) and public schools. This was held to not be an "excessive entanglement of church and state." In 1971, the Supreme Court ruled in Lemon v. Kurtzman on the practice of using of state money to assist private schools by supplementing the salaries of teachers and buying textbooks and other school supplies for parochial schools. The Court established the test that still exists today for the most part—governments were allowed to act on religious issues, if the program's purpose was a secular one, if there was not an "excessive entanglement of church and state," and if the main effect did not help or hurt religion. Since that time, the court has issued varying rulings on things such as school prayer and tax credits for education that helped private schools, but the Lemon test, for the most part, still remains the rule.

Primary Source: Zorach v. Clauson [excerpt]

SYNOPSIS: Justice William O. Douglas summarizes the New York City public school program being challenged. With no state funding or coercion of students, he finds no constitutional bars against the program. Justice Hugo L. Black dissents, holding that the separation of church and state must be completely neutral. Justice Robert H. Jackson, also dissenting, expresses concerns that in this program the state takes upon itself the role of determining appropriate religious authorities for the program.

Mr. Justice Douglas delivered the opinion of the Court.

New York City has a program which permits its public schools to release students during the school day so that they may leave the school buildings and school grounds and go to religious centers for religious instruction or devotional exercises. A student is released on written request of his parents. Those not released stay in the classrooms. 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.

This "released time" program involves neither religious instruction in public school classrooms nor the expenditure of public funds. All costs, including the application blanks, are paid by the religious organizations. The case is therefore unlike McCollum v. Board of Education… which involved a "released time" program from Illinois. In that case the classrooms were turned over to religious instructors. We accordingly held that the program violated the First Amendment which (by reason of the Fourteenth Amendment) prohibits the states from establishing religion or prohibiting its free exercise.

Appellants, who are taxpayers and residents of New York City and whose children attend its public schools, challenge the present law.… Their argument, stated elaborately in various ways, reduces itself to this: the weight and influence of the school is put behind a program for religious instruction; public school teachers police it, keeping tab on students who are released; the classroom activities come to a halt while the students who are released for religious instruction are on leave; the school is a crutch on which the churches are leaning for support in their religious training; without the cooperation of the schools this "released time" program … would be futile and ineffective. The New York Court of Appeals sustained the law against this claim of unconstitutionality.… The case is here on appeal.…

Those matters [on the merits of this type of "released time" program] are of no concern here, since our problem reduces itself to whether New York by this system has either prohibited the "free exercise" of religion or has made a law "respecting an establishment of religion" within the meaning of the First Amendment.

It takes obtuse reasoning to inject any issue of the "free exercise" of religion into the present case. 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. A student need not take religious instruction. He is left to his own desires as to the manner or time of his religious devotions, if any.

There is a suggestion that the system involves the use of coercion to get public school students into religious classrooms. There is no evidence in the record before us that supports that conclusion. 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. 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.…

We would have to press the concept of separation of Church and State to … extremes to condemn the present law on constitutional grounds. The nullification of this law would have wide and profound effects. A Catholic student applies to his teacher for permission to leave the school during hours on a Holy Day of Obligation to attend a mass. A Jewish student asks his teacher for permission to be excused for Yom Kippur. A Protestant wants the afternoon off for a family baptismal ceremony. In each case the teacher requires parental consent in writing. 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 teacher in other words cooperates in a religious program to the extent of making it possible for her students to participate in it. Whether she does it occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter the character of the act.

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. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. 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. No more than that is undertaken here.

This program may be unwise and improvident from an educational or a community viewpoint.… Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.…

In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.


Mr. Justice Black, dissenting.…

The Court's validation of the New York system rests in part on its statement that Americans are "a religious people whose institutions presuppose a Supreme Being." This was at least as true when the First Amendment was adopted; and it was just as true when eight Justices of this Court invalidated the released time system in McCollum on the premise that a state can no more "aid all religions" than it can aid one. It was precisely because Eighteenth Century Americans were a religious people divided into many fighting sects that we were given the constitutional mandate to keep Church and State completely separate. Colonial history had already shown that, here as elsewhere zealous sectarians entrusted with governmental power to further their causes would sometimes torture, maim and kill those they branded "heretics," "atheists" or "agnostics." The First Amendment was therefore to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters whom they could not convert to their faith. Now as then, it is only by wholly isolating the state from the religious sphere and compelling it to be completely neutral, that the freedom of each and every denomination and of all nonbelievers can be maintained. It is this neutrality the Court abandons today when it treats New York's coercive system as a program which merely "encourages religious instruction or cooperates with religious authorities." The abandonment is all the more dangerous to liberty because of the Court's legal exaltation of the orthodox and its derogation of unbelievers.

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. The choice of all has been as free as the choice of those who answered the call to worship moved only by the music of the old Sunday morning church bells. 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. Statutes authorizing such repression have been stricken. Before today, our judicial opinions have refrained from drawing invidious distinctions between those who believe in no religion and those who do believe. The First Amendment has lost much if the religious follower and the atheist are no longer to be judicially regarded as entitled to equal justice under law.

State help to religion injects political and party prejudices into a holy field. It too often substitutes force for prayer, hate for love, and persecution for persuasion. Government should not be allowed, under cover of the soft euphemism of "co-operation," to steal into the sacred area of religious choice.…

Mr. Justice Jackson, dissenting.…

The day that this country ceases to be free for irreligion it will cease to be free for religion—except for the sect that can win political power. 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. 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." We start down a rough road when we begin to mix compulsory public education with compulsory godliness.

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. McCollum v. Board of Education.… The distinction attempted between that case and this is trivial, almost to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity. A reading of the Court's opinion in that case along with its opinion in this case will show such difference of overtones and undertones as to make clear that the McCollumcase has passed like a storm in a teacup. The wall which the Court was professing to erect between Church and State has become even more warped and twisted than I expected. Today's judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law.

Further Resources


Ball, Howard, and Phillip J. Cooper. Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution. New York: Oxford University Press, 1992.

Douglas, William O. The Court Years, 1939–1975: The Autobiography of William O. Douglas. New York: Random House, 1980.

Murphy, Bruce Allen. Wild Bill: The Legend and Life of William O. Douglas. New York: Random House, 2002.

Urofsky, Melvin I. The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-CLIO, 2001.

Wasby, Stephen L. "He Shall Not Pass This Way Again": The Legacy of Justice William O. Douglas. Pittsburgh, Pa.: University of Pittsburgh Press for the William O. Douglas Institute, 1990.


Louisell, David W. "The Man and the Mountain: Douglas on Religious Freedom." Yale Law Journal 73, no. 6, May 1964, 975–998.


"Zorach v. Clauson." The Religious Freedom Page. Available online at http://religiousfreedom.lib.virginia.edu/court/zora_v_clau.... ; website home page: http://religiousfreedom.lib.virginia.edu/home.html (accessed March 3, 2003).