# Murray v. Curlett > Court of Appeals of Maryland · April 6, 1962 · 228 Md. 239 URL: https://www.frixlaw.com/law-library/cases/9705867 ## Case - **Full name:** MURRAY Et Al. v. CURLETT Et Al. - **Court:** Court of Appeals of Maryland - **Decided:** April 6, 1962 - **Citations:** 228 Md. 239; 179 A.2d 698; 1962 Md. LEXIS 439 - **Precedential status:** Published - **Opinion:** Dissent by Brune - **Judges:** Hornby, Bruñe, Henderson, Prescott, Horney, Marbury, Hammond, Barrett - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Abington School Dist. v. Schempp, 374 U.S. 203 (1963). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705867 ## Opinion text *251 Bruñe, C. J., filed the following dissenting opinion, in which Henderson and Prescott, JJ., concurred. 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; 1 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 had 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”; *252 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 v. Bd. of Sup'rs of Elections, 205 Md. 325, 327 , 106 A. 2d 927 . A difficulty 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. Clauson, 343 U. S. 306, 311-12, 321-22, 323 . 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 , 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 (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, 369 *253 U. S. 186 , 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. R. Rev. 1265, esp. pp. 1298-99 and comment on Bverson and Doremus , pp. 1310-11. In any event, the mother’s interest as a parent and her son’s own interest appear to be clearly sufficient under McCollum v. Board of Education, 333 U. S. 203 , and Zorach v. Clauson, 343 U. S. 306, 309 (n. 4). Cf. Board of Education v. Barnette, 319 U. S. 624 . See also Engel v. Vitale, 218 N. Y. S. 2d 659, 10 N. Y. 2d 174, 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 Rord’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 ), 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. 2 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. *254 Board of Education, supra, 330 U. S. at 15-16 , 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 erect ‘a wall of separation between church and State.’ ” 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 McCollum v. Board of Education, 333 U. S. 203 , the Supreme Court adhered to Bverson 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 *255 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 209-10 ) : “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 tax-established 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 .” Mr. Justice Frankfurter, who had dissented in Bverson, filed an opinion in which Mr. Justice Jackson, Mr. Justice Rutledge, and Mr. Justice Burton, who had also dissented in Bverson, 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 ) : “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 493-94 , in reversing a judgment of this Court. 3 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 *256 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 , 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 ¿ven offended * * * [by the Bible reading] or that she was compelled to accept, approve or confess 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 . The Supreme Court did not, however, rest its dismissal of the appeal of the parent of this child on any ground other than mootness. 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 *257 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 made 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 , that “We are a religious people whose institutions presuppose a Supreme Being.” 343 U. S. at 313 . 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 church 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 . Because of the different result in Zorach from that in Mc-Collum, there was some belief (shared by this Court in Tor caso) that Zorach marked a retraction from McCollum . Since the decision of Tor caso 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 Bverson, 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. McGowan v. Maryland, 366 U. S. 420 , and companion cases, Gallagher v. Crown Kosher Super Market, 366 U. S. 617 ; Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U. S. 582; and Braunfeld v. Brown, 366 U. S. 599 . There seems to be no substantial room for dispute that the reading of passages from the Bible and the recital of the Ford’s Prayer are Christian religious exercises. 4 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 *258 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 referred to 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 441-42) : “But, the First Amendment, in its final form, did not simply bar a congressional enactment establishing a 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 sup-, press.’ ” The Court then cited Everson, 330 U. S. at 14 -15 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. The fact that individual students, or theoretically all students, may be excused from attendance at these exercises does not, in my estimation, save the rule from collision with the “establishment of religion” clause of the First Amendment, even if it could save it from collision with the “free exercise of religion” clause. The coercive or compulsive power of the *259 State is exercised at least to the extent of requiring pupils to attend school and it requires affirmative action to exempt them from participation in these religious exercises. This conclusion is in accord with the result reached by a special three-judge District Court in Pennsylvania in Schempp v. School District of Abington Township, 201 F. Supp. 815 , decided February 1, 1962. The opinion was written by Biggs, C. J., after remand of the case by the Supreme Court ( 364 U. S. 298 ) following the amendment of the Pennsylvania statute pendente lite so as to provide for pupils to be excused upon the written request of a parent or guardian from attending the reading, without comment, of ten verses from the Bible, such reading still being made compulsory in public schools of that Commonwealth. I have carefully considered the case of Engel v. Vitale, supra, 10 N. Y. 2d 174, 218 N. Y. S. 2d 659, in which five of the Judges of the Court of Appeals of New York concurred in upholding the reading in a public school of that State of the so called “Regents’ Prayer”. There, as in the instant case and in Schempp , there were provisions for students to be excused from the exercises at which the prayer was required to be said. I find the dissenting opinion of Judge Dye, in which Judge Fuld concurred, more persuasive than the majority views. The majority seems to me to do as this Court did in Tor caso in placing too much reliance on the result of Z orach and the oft-quoted statement that “We are a religious people whose institutions presuppose a Supreme Being.” The opinion of Justice Dye interprets the decisions of the Supreme Court substantially as I have endeavored to do in this dissent. Despite the provisions for excuse from attending these religious exercises, two further questions relating to coercion (apart from what might be called the general coercion already considered in connection with the “establishment of religion” clause) still remain. One is whether or not there is coercion upon the individual student by reason of his incurring suspicions and losing caste with his fellows, as alleged in the petition. The other is whether or not there is compulsion upon the student or his parent requesting that he be excused, or upon both, to profess disbelief in any religion. *260 As to the first of these questions it seems to me that under our ordinary rules of pleading, the allegations of the petition are not so insubstantial as to be brushed aside as mere conclusions of the pleader, and that they are sufficient on demurrer. The Supreme Court has recognized in Brown v. Board of Education, 347 U. S. 483, in applying the Fourteenth Amendment, that psychological effects upon children may be of vital importance. Such factors are alleged here, and as the case now stands they are admitted by the demurrer. With regard to the second question stated — requiring a profession of disbelief—the situation here seems to be the converse of Torcaso. There the Supreme Court struck down the provision of the Constitution of this State requiring as a condition of holding an office of public trust that the person elected or appointed thereto declare his belief in the existence of God. Here, since attendance at these religious exercises is compulsory, unless a written parental excuse is filed, what amounts to a profession of disbelief in the religion to which they pertain is required of the parent and perhaps also of the child, at the peril of the child being subjected to the pressures alleged or of the parent and the child, too, if he is old enough to comprehend and share his parents’ views respecting religion, subordinating or abandoning their convictions. Cf. Talley v. California, 362 U. S. 60 , involving a freedom of speech question. Neither a profession of belief nor of disbelief may be required. These considerations illustrate the intermeshing of the “establishment of religion” and of the “free exercise” clauses of the First Amendment. Hesitancy to expose a child to the suspicions of his fellows and to losing caste with them, will tend to cause the surrender of his and his parents’ religious or nonreligious convictions and will thus tend to put the hand of the State into the scales on tire side of a particular religion which is supported by the prescribed exercises. Torcaso quoted from Everson with regard to the meaning of the establishment clause; it also explicitly held that the provision which was there condemned “invades the appellant’s freedom of belief and religion and therefore cannot be enforced against him.” Whether Torcaso proceeds on one or the other or both of *261 the religious freedom provisions of the First Amendment, it seems clear under all of the cases, including Zorach , that coercion is barred. Engel v. Vitale, supra, cert. granted 368 U. S. 924 , was argued on April 3, 1962, and is now awaiting determination by the Supreme Court. I believe that its decision in that case will be determinative of this. Meanwhile, I can only state my understanding of the effect of prior decisions of the Supreme Court and express my own opinion that those decisions call for a decision of this case reaching a result opposite to that reached by a majority of this Court. Judge Henderson and Judge Prescott have authorized me to say that they join in this dissent. . 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, 343 U. S. 439 , 433-33, where a child’s graduation did render the case moot with regard to such child. . 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 . . 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. . If the exercises were confined to reading from the Old Testament, they would be both Jewish and Christian, but still religious. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705867. Public record. Not legal advice.