# Gordon v. Board of Education > California Court of Appeal · March 10, 1947 · 78 Cal. App. 2d 464 URL: https://www.frixlaw.com/law-library/cases/9591879 ## Case - **Full name:** RITA GORDON, Appellant, v. BOARD OF EDUCATION OF THE CITY OF LOS ANGELES Et Al., Respondents; LOUISE H. PEPPIN Et Al., Interveners - **Court:** California Court of Appeal - **Decided:** March 10, 1947 - **Citations:** 78 Cal. App. 2d 464; 178 P.2d 488; 1947 Cal. App. LEXIS 1493 - **Precedential status:** Published - **Opinion:** Concurrence by White - **Judges:** Drapeau, White - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9591879 ## Opinion text WHITE, J. I concur with the foregoing opinion and the reasoning supporting it. That the legislation which gave rise to this proceeding is not in the remotest degree tinged with sectarianism or denominationalism is attested by the fact that arrayed in defense of the constitutionality of the challenged Education Code section are parents whose children, under the Released Time Religious Educational Program, are being instructed in the Jewish, various Protestant, and Roman Catholic religious faiths. Throughout her entire argument, appellant misconceives the American principle of religious freedom. What she contends for is freedom from religion rather than freedom of religion. Appellant’s argument leads one to the conclusion that the doctrine of separation of church and state looks upon religion as something intrinsically evil, and against which there should be a rigid quarantine. Nothing is farther from the true concept of the American philosophy of government than such an argument. In the constitution of every state of the union is to be found language which either directly, or by clear implication, recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well-being of the community. The preamble of the Constitution of the State of California says: *477 “We, the People of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.” (Emphasis added.) As was so cogently stated by the United States Supreme Court in the case of The Rector, etc., Church of The Holy Trinity v. United States, 143 U.S. 457 ( 12 S.Ct. 511 [36 L.Ed 226]) : “. . . no purpose of action against religion can be imputed to any legislation, State or Nation, because this is a religious people.” (Emphasis added.) And again, in the same case, after offering historical proof in support of the language just quoted, the court says: There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons; they are organic utterances ; they speak the voice of the entire people.” That ours is a religious nation is historically true from the discovery of this continent to the present hour. Coming down to our own Declaration of Independence we find a recognition of Almighty God in the words: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.” Also, in the same document we read: “We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good people of these colonies, solemnly publish and declare, ’ ’ etc. And in bringing this immortal charter of liberty to a close, the signers thereof, “with a firm reliance on the protection of Divine Providence,” mutually pledged their lives, fortunes, and sacred honor to the end that, as President Lincoln said in that military cemetery at Gettysburg, there might be “brought forth on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” In further proof that this is essentially a religious nation we have the form of oath universally prevailing in our courts and concluding with an appeal to Almighty God. And here I pause to recall the admonition of President George Washington in his Farewell Address when he cautioned us: “Of all the dispositions and habits, which lead to political prosperity, religion and morality are indispensable supports. *478 In. vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be' asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle. In addition, we have the custom of opening the Congress of the United States, and State Legislatures, with prayer for divine guidance; the prefatory words so prevalent in wills, “In the Name of God, Amen”; exemption of churches from taxation; and the closing of our courts, Legislatures and similar public assemblages and public offices in observance of the Sabbath day. In the face of all these, shall it be believed or said that the Constitution of this state operates to make void legislation, the effect of which is to promote religion? While eternal vigilance is yet the price of constitutional rights, a long line of cases establishes as a fact that neither the Constitution nor the law discriminates against religion. It is denominational religion that is placed outside of public aid or support. History, both ancient and modern, bears striking witness to the inevitable fate that has befallen peoples whose government has engaged in undermining or destroying belief in the existence of God and attempted to replace Him with idols, either in the form of a man, groups of men, or of the state. Inalienable, natural rights of every kind disappeared and the individual became but the pawn and chattel of the state, stripped of any rights, privileges or guaranties except such as might be conferred upon him by the state—a veritable system of ignominious slavery. The essence of the Released Time Religious Education Program (Ed. Code, § 8286) is to authorize governing boards of school districts, within their discretion, to permit pupils to be *479 excused from school at the request of their parents for the purpose of attending classes of religious instruction maintained and operated by religious faiths of their own choosing. Examination of the statute reveals nothing opposed to the constitutional guarantee insuring religious liberty, freedom of conscience and preventing the establishment of a particular religion. The code section in question does not in any way interfere with religious freedom. It does not work an establishment of religion, provide for compulsory support, by taxation or otherwise, of religious instruction, make attendance upon religious worship compulsory, work a restriction upon the exercise of religion according to the dictates of conscience, or impose restrictions upon the expression of religious belief. The California Released School Time Religious Education Program authorized by section 8286 of the Education Code, is not new in the United States. Either by express statutory provisions, court decisions, rulings of the State Attorneys General, or opinions of state boards of education or Chief State School Officers, forty states authorize the release of public school pupils for weekly religious education classes. And it is noteworthy that no appellate court of any state has held such programs unconstitutional. In both the States of New York and Illinois judicial attacks have been made upon the released time programs on identical grounds as the attack in the instant case, to wit, that the plans violated the constitutional guarantees of freedom of religion and were in aid óf a religious purpose. Because of the similarity of the facts and of the constitutional provisions in those cases and the ones involved in the case with which we are here concerned, the decisions of those courts are persuasive and entitled to great weight. I refer to the cases of People ex rel. Lewis v. Graves, 245 N.Y. 195 [ 156 N.E. 663, 664 ]; People ex rel. Latimer v. Board of Education, 394 Ill. 228 [ 68 N.E.2d 305]; and People ex rel. McCollum v. Board of Education ( 396 Ill. 14 [ 71 N.E.2d 161 ]). Under our California statute, no particular denomination or religious faith is favored, no part of the religious instruction is held in the schoolroom on school property, and no one is required to attend. To act in accordance with his lack of religion is the right of the man of no religion, but he has no right to insist that others shall have no religion. The recent California case of Bowker v. Baker, 73 Cal.App.2d 653 [ 167 P.2d 256 ], is a complete answer to appellant’s *480 contention that the Released Time Religious Education Program violates the provisions of article IV, section 30, or article IX, section 8, prohibiting the granting by the state of anything in aid of any sectarian purpose. In the case just cited, after an exhaustive review of many cases, the court says: “While these cases do not directly touch on the main question before us they do support the theory that where the main purpose of an enactment is lawful, and an incidental or immaterial benefit results to some person or organization, which benefit is not directly permitted by law, this incidental benefit alone will not defeat the legislation, its main purpose being lawful. . . . “If the transportation of pupils to and from public schools is authorized, as it certainly is, and if the benefit from that transportation is to the pupils, then an incidental benefit flowing to a denominational school from free transportation of its pupils should not be sufficient to deprive the Legislature of the power to authorize a school district to transport such pupils.” The true and essential purpose of the American doctrine of separation of church and state is to protect people in the fullest enjoyment of religious freedom and to forestall compulsion by law of the acceptance of any creed or the practice of any particular form of worship, but the decisions in both the federal and state courts furnish unmistakable authority for the proposition that the doctrine of separation of church and state does not mean that there is any conflict between religion and state in this country or any disfavor of any kind upon religion as such. Appellant’s argument also ignores the long established doctrine in the United States that the alien philosophy that the child is the creature of the state finds no countenance in the American system of government (Boens v. Bennett, 20 Cal.App.2d 477, 482 [ 67 P.2d 715 ]). Under our system of government the family is the foundation of the social order, it does not spring from the state but the state springs from the family. The parents, unless their parental authority has been taken away by the courts, are the ones to decide the extent and character of the education of their children, beyond what is provided by the school system of the state. As was said by the United States Supreme Court in the case of Pierce v. Society of Sisters of Holy Names, 268 U.S. 510 [ 45 S.Ct. 571 , 69 L.Ed. 1070, 1078 , 39 A.L.R. 468 ]: *481 “Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 67 L.ed. 1042, 29 A.L.R. 1446 , 43 S.Ct. 625 , we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” The released-time plan for religious education does no violence to any constitutional prohibition. It is in use and has been approved by appellate courts in other states. It does not discriminate in favor of any sect or religion. It is squarely within the purview of article IX, section 1 of the California State Constitution which provides: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of people, the legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.” (Emphasis supplied.) Appellant’s and interveners’ petitions for a hearing by the Supreme Court were denied May 8, 1947. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9591879. Public record. Not legal advice.