Skip to main content

Full text of "The Constitutional and Legal Status of Religion in Public Education"

See other formats


STOP 



Early Journal Content on JSTOR, Free to Anyone in the World 

This article is one of nearly 500,000 scholarly works digitized and made freely available to everyone in 
the world by JSTOR. 

Known as the Early Journal Content, this set of works include research articles, news, letters, and other 
writings published in more than 200 of the oldest leading academic journals. The works date from the 
mid-seventeenth to the early twentieth centuries. 

We encourage people to read and share the Early Journal Content openly and to tell others that this 
resource exists. People may post this content online or redistribute in any way for non-commercial 
purposes. 

Read more about Early Journal Content at http://about.jstor.org/participate-jstor/individuals/early- 
journal-content . 



JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people 
discover, use, and build upon a wide range of content through a powerful research and teaching 
platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit 
organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please 
contact support@jstor.org. 



THE CONSTITUTIONAL AND LEGAL STATUS 
OF RELIGION IN PUBLIC EDUCATION 

CARL ZOLLMANN 

Milwaukee, Wisconsin 



The principle of separation of church and state in America makes impossible the 
direct teaching of religion in public schools. By implication anti-religious propaganda 
is also excluded. The Northwest Ordinance of 1787 declares that religion is to be 
encouraged. 

The common law back of the Constitution recognizes Christianity as a part of the 
law of the land. This has been expressly stated in a Pennsylvania court decision. 
Legislation prohibiting teaching contrary to Christianity is thus probably constitu- 
tional. The difficulty of such legislation will lie in the definition of terms and the 
administration of the law. 

It is a truism that the public schools of this country are 
non-sectarian in their very nature and hence cannot impart 
religious instruction. This situation is the natural result of 
our American doctrine concerning the relation of church and 
state. Any attempt by a public school to teach religion must 
necessarily bring it into conflict with the religious convictions 
of some citizens. The result is a public system of education 
confined to secular subjects. 

It is clear that such a system is essentially defective. One 
of the elements of a well-balanced education is lacking. The 
religious and moral qualities of the pupils are of necessity 
neglected. The result of this lack of balance, the consequences 
of this sharpening of the wits without a corresponding deepen- 
ing of the religious and moral conceptions, can be studied at 
first hand in any penitentiary or reform school. Great dissat- 
isfaction accordingly is manifested throughout the country. 
A new form of religious day school which aims to co-operate 
rather than compete with the public schools is therefore in the 
process of being created. Through this means it is hoped to 
restore religious education to public-school pupils. 1 

1 See an article by the author of this paper entitled , "The Legal Basis, " in Religious 
Education, February, 1922, p. 34. 

236 



THE LEGAL STATUS OF RELIGION IN EDUCATION 237 

It is quite essential to this new development that the secular 
teaching in the public schools harmonize as much as possible 
with the religious culture imparted by the religious schools. 
Otherwise one school will tear down what the other builds. 
An approximation to the situation in the old-style parochial 
school, where physiology, geography, history, and even reading, 
writing, and arithmetic are taught in the light of religion, is 
desirable. 

The inherent limitations must not be left out of view. 
The contrariety in the religious beliefs which will be imparted 
in the parochial schools will make the task of completely 
harmonizing the secular education with such beliefs an utter 
impossibility. If the beliefs of every religious sect were to be 
regarded public schools might in some localities be required 
to teach that the globe on which we live is flat. All that can 
be done, therefore, is to keep out of the public schools the worst 
outcroppings of anti-religious propaganda such as the denial 
that there is a God or the contention that man is descended 
from the ape. 

This in fact is what is now being attempted through bills 
introduced into a number of legislatures largely through the 
efforts of William Jennings Bryan. The proposed Kentucky 
law probably is typical of others. It would penalize public- 
school teachers, principals, superintendents, etc., who teach 
Darwinism, atheism, agnosticism, or the theory of evolution, 
in so far as it pertains to the origin of man, or who knowingly 
permit such subjects to be taught. 

It is not, however, the first time that the subject has been 
before the country. When President Grant in an address to 
the Army of the Tennessee at Des Moines, Iowa, on September 
29, 1875, challenged a movement whose aims were to gain 
public support for parochial schools and to introduce religious 
instruction into the public schools he said: "Resolve that 
neither the state nor nation, nor both combined, shall support 
institutions of learning other than those sufficient to afford 



238 THE JOURNAL OF RELIGION 

every child growing up in the land the opportunity of a good 
common-school education, unmixed with sectarian, pagan, or 
atheistical dogmas. 1 His annual message of 1875 accord- 
ingly recommended an amendment to the federal constitution 
making it the duty of the various states to establish public 
schools and forbidding "the teaching in said schools of religious, 
atheistic, or pagan tenets." 2 When the proposed amendment 
was finally, on August 11, 1876, voted upon by the Senate it 
forbade the appropriation of public property or revenue to 
any school "wherein the particular creed or tenets of any 
religious or anti-religious sect, organization, or denomination 
shall be taught." 3 The failure of the measure to obtain the 
necessary two-thirds majority in the Senate closed the agitation 
so far as this particular phase is concerned without resulting 
in any tangible legislative enactment or constitutional provi- 
sion. 

This result was to be expected. No organized attempt to 
introduce anti-religious tenets into the public schools had been 
made. It is true that the public schools, though they were the 
direct lineal descendants of the parochial school founded by the 
early settlers in close connection if not union with the churches 
which they built, had been secularized by an elimination of 
their religious aspects. But this was as far as the develop- 
ment had gone. It had never been intended by this elimina- 
tion to make the public schools the stamping-grounds of 
anti-religious propaganda. The purpose was to eliminate all 
discussion of religion, whether friendly or hostile. Either is 
a disturbing element and should be kept out. Anti-religious 
zealots are apt to be just as polemic and bigoted as are some 
religious devotees. 

Not much material in the form of constitutional provisions 
need therefore be expected. While the number of the so-called 
unchurched in this country is large, the great majority of this 

1 Hecher, Catholics and Education, p. 180; Sevett, American Public Schools, p. 72. 

2 Congressional Record, Vol. 4, Part 1, p. 175. 3 Ibid., p. S453- 



TEE LEGAL STATUS OF RELIGION IN EDUCATION 239 

class are unreligious rather than anti-religious and retain some 
preference toward, if not touch with, some church. The 
forces of downright agnosticism and atheism are therefore 
quite small. In addition they stand for a mere negative and 
have no such organization as is maintained by the various 
denominations. They therefore have not made themselves felt 
in public life to any very marked extent. While provisions 
against sectarian instruction in public schools or public support 
of sectarian institutions have been inserted in practically all 
the constitutions adopted since the days of Grant, 1 there has 
been no occasion to invoke constitutional restraints against 
the forces of unbelief. The author has examined the constitu- 
tions of all the forty-eight states but has failed to find a single 
provision levied against this particular form of opinion. 

All that can therefore be cited are a few constitutional 
provisions which closely link education and religion together. 
While the convention which framed the Constitution of the 
United States was in session, Congress, in 1787 enacted the 
famous Northwest Ordinance, which stated that "religion, 
morality, and knowledge being necessary to good government 
and the happiness of mankind schools and the means of educa- 
tion shall forever be encouraged." 2 This provision was super- 
seded when the various states which now take up the North- 
west Territory adopted their constitutions 3 but has been 
literally copied into the constitutions of Michigan and North 
Carolina 4 and has with certain changes been adopted by Ohio 
and Nebraska. 5 Says the Michigan Court in reference to this 

1 See the author's article, "The Legal Basis," in Religious Education, February, 
1922, p. 34. Also a pamphlet by him, Church and School in the American Law, 
published by the Concordia Publishing House, St. Louis, Mo. 

2 Article 3. 

3 1890 State ex rel Weiss v. Edgerton School District 76, Wis. 177, 44 N.W. 967, 
7 L.R.A. 330, 20 Am. St. Rep. 41. 

* Michigan constitution of 1908, Art. n, Sec. 1. North Carolina constitution of 
1876, Art. 9, Sec. 1. 

' Nebraska constitution of 1875, Art. 2, Sec. 4. Ohio constitution of 1912, Art. 1, 
Sec. 7. 



240 THE JOURNAL OF RELIGION 

provision: "It is not to be inferred that, in forming a constitu- 
tion under the authority of this ordinance, the convention 
intended to prohibit in the public schools all mention of a 
subject which the ordinance, in effect, declared that the schools 
were to be established to foster." 1 

This lack of constitutional restrictions throws us back on 
the common law which lies back of the constitutions, though 
it may be evidenced by recent decisions. Two outstanding 
indications are at hand, one negative, the other positive. 
The latter deals with the maxim that Christianity is a part of 
the law of the land. The former involves trusts to anti- 
religious purposes. We shall dispose of the negative before 
taking up the positive aspects of the matter. 

According to the early English cases any attempt to bring 
into controversy the truth of any Christian doctrine constituted 
the crime of blasphemy. Therefore any testamentary disposi- 
tion of property designed to promote the discussion of the truth 
of these doctrines was void as being in furtherance of a crime. 2 
This doctrine has now been abandoned even in England. 3 
The question remains whether a gift to a positively anti- 
religious purpose will be sustained. On this question the 
authorities are not as explicit as might be desired. Indeed 
gifts to a voluntary association of free thinkers and anti- 
sectarians 4 or to the "Infidel Society" of Philadelphia 5 have 
been held to be too vague to be executed by the courts. It has 
been pointed out that it is not easy to see how love to God or 
man can be promoted by the dissemination of infidelity which 
robs men of faith and hope if not of charity also. Therefore 

1 1898 Pfeiffer v. Detroit Board of Education, 118 Mich. 560, 77 N.W. 250, 42 
L.R.A. 536. 

2 See note, "Validity of Testamentary Disposition Subversive of Religion," 
Ann. Cas. 191 7 B 1024. 

3 1915 In re Bowman 113, L.T. Rep. 1095; cited 25 Yale Law J. 503. 

1 1909 Korsstrom v. Barnes, 167, Fed. 216. 

s 1870 Zeisweiss v. James, 63 Pa. (13 P. F. Smith), 465, 468; 3 Am. Rep. 558. 



THE LEGAL STATUS OF RELIGION IN EDUCATION 241 

the Pennsylvania court has concluded that "a court of equity 
will not enforce a trust where its object is the propagation of 
atheism, infidelity, immorality or hostility to the existing form 
of government. A man may do many things while living which 
the law will not do for him after he is dead. He may deny the 
existence of a God, and employ his fortune in the dissemination 
of infidel views. But should he leave his fortune in trust for 
such purposes, the law will strike down the trust as contra 
bonos mores.'" 1 Similarly, atheists are by the constitutions, 
statutes, and decisions of a considerable number of states 
disqualified from acting as witnesses in the courts or from 
holding public office. It is one of the purposes of our common 
schools to help qualify citizens for these important duties. 
A prohibition levied against the teaching of atheism in the 
public schools is adapted to prevent in a measure such dis- 
qualification and therefore is within the competency of the 
legislature. 

The maxim that Christianity is a part of the law of the land 
originated in England when church and state were closely 
linked together. It came with the Pilgrims to America. 
Though in the course of our history church and state have, 
parted company, though Thomas Jefferson has branded the 
maxim as a "judicial forgery" which "engulfed Bible, testa- 
ment and all into the common law," 2 it remains today as the 
abstract expression of a very concrete series of facts. The 
fact that church and state are separated has not done away 
with the other fact that the Christian religion is and ever has 
been the religion of the people. "This fact is everywhere 
prominent in all our civil and political history, and has been, 
from the first, recognized and acted upon by the people, as 

1 1880 Manners v. Philadelphia Library Co., 93 Pa. 165, 172 ; 39 Am. 
Rep. 741. 

* Letter of June 5, 1824, Jefferson's Posthumous Works, Vol. IV. Cited and 
discussed 1837 State v. Chandler, 2 Del. 558. For a criticism of this dictum see 9 
Am. Jur. 346. 



242 TEE JOURNAL OF RELIGION 

well as by constitutional conventions, by legislatures and by 
courts of justice." 1 Says the Pennsylvania court: 

The declaration that Christianity is part of the law of the land, is 
a summary description of an existing and very obvious condition of our 
institutions. We are a Christian people, in so far as we have entered 
into the spirit of Christian institutions, and become imbued with the 
sentiments and principles of Christianity; and we cannot be imbued 
with them, and yet prevent them from entering into and influencing, 
more or less, all our social institutions, customs, and relations, as well 
as our individual modes of thinking and acting. It is involved in our 
social nature, that even those among us who reject Christianity, cannot 
possibly get clear of its influence, or reject those sentiments, customs, 
and principles which it has spread among the people, so that, like the 
air we breathe, they have become the common stock of the whole country, 
and essential elements of its life. 2 

In the words of the United States Supreme Court, Chris- 
tianity is a part of the law of the land in this qualified sense 
that it is "not to be maliciously and openly reviled and blas- 
phemed against, to the annoyance of believers or the injury 
of the public." 3 Lack of space forbids us from citing other 
significant utterances by various courts. 4 

Christianity being a part of the law of the land the Con- 
necticut court has declared that our school laws are based on 
the Christian religion. 5 It therefore is just and proper that 
teachers be required to conform their conduct in and out of 
the schoolroom to the moral precepts of this religion. They 
may even be expected to rise above these precepts so far as 
they have been laid down by the criminal law. It is but a 
step farther to require them if they entertain agnostic or 
atheistic notions to refrain from exploiting them in the class- 
room. Since the ordinary citizen may on pain of punishment 

1 1861 Lindenmueller v. People, a Barb. 548, 561 (N.Y.). 
2 1855 Mohney v. Cook, 26 Pa. 342, 347, 67 Am. Dec. 419. 
3 1844 Vidal v. Girard, 43 U.S. (2 How.) 127, 198, 11 L. Ed. 20. 
"See an article by the author of this article in 17 Mich. Law Review, 368-377. 
See also the author's American Civil Church Law, pp. 12-15. 

5 1854 First Congregational Society v. Atwater, 23 Conn., 34, 42. 



THE LEGAL STATUS OF RELIGION IN EDUCATION 243 

be forbidden from expressing blasphemous sentiments, 1 the 
teacher who is in the employ of the state may certainly be 
required to abstain from poisoning the minds of his charges 
with atheistic or agnostic conceptions. 

That the administration of the law will involve grave 
difficulties is clear. The words used by it will have to be 
defined. The state of public opinion in the particular locality 
will influence this definition. Where religious sentiment is 
strong courts will incline to give a broad definition. Where 
it is weak the contrary course is probable. The religious 
leaning of the judge or judges in question will also be important. 
Where a jury tries the case the prevailing religious opinion of 
the neighborhood is apt to be decisive. 

This difficulty, however, is not peculiar to this situation. 
It exists in connection with very many statutes. Thus blas- 
phemy laws are on the statute books of many of the states. 
The term blasphemy is certainly as hard to define as is agnosti- 
cism or atheism. Yet the difficulty of defining this term has 
not prevented the courts from enforcing the statute. 2 Neither 
will it prevent the statute under consideration from being 
enforced. Terms which cannot be defined definitely in the 
abstract will be left for demarkation to the judicial process 
of inclusion and exclusion. Where the intention of the legis- 
lature is reasonably clear and not in contravention of the 
Constitution the courts will be obliged to enforce it and to 
meet as best they can the difficulties which are inevitably 
presented when such laws are applied to concrete situations. 

A distinction, of course, exists between agnosticism and 
atheism on the one side and Darwinism and evolution on the 
other. The former are inherently, the latter only incidentally, 
anti-religious. It is even possible to teach Darwinism and 

1 See the cases cited in the next note. 

2 Spechl v. Commonwealth, 8 Pa. 312; People v. Ruggles, 8 Johns 290 (N.Y.); 
State v. Chandler, 2 Harrings 553 (Del.); Undegraph v. Commonwealth, 11 S. and R. 
394 (Pa.); Mochus v. State, 1 13 Atl. 39 (Me.) For a short discussion of these cases see 
the author's American Civil Church Law, pp. 15 and 16. 



244 THE JOURNAL OF RELIGION 

evolution so as not to conflict with religious and even Christian 
principles. This, however, is entirely a matter of the personal 
equation of the particular teacher. If he is an infidel he cannot 
but teach these subjects in such a manner that they will conflict 
with the teachings of the various denominations into which the 
American people are divided. An absolute prohibition therefore 
would seem to be the only effective remedy. Has the legisla- 
ture the necessary power ? There appears to be no constitu- 
tional inhibition. There are no constitutional provisions 
protecting the teaching of these subjects. The question what 
subjects are to be taught in the public schools therefore is 
a matter of absolute legislative discretion. Such discretion 
extends even beyond the public schools. A prohibition of the 
teaching of one or all foreign languages in parochial schools 
to pupils under a certain grade has been adopted in recent 
years in many states and has been upheld by the Iowa, Ohio, 
and Nebraska courts. 1 If the legislature has power to limit 
or forbid the teaching in private schools of such legitimate 
subjects of study as foreign languages it certainly can pro- 
hibit the teaching of Darwinism and evolution in the public 
schools. Arguments against such a prohibition should there- 
fore be addressed to the legislatures, not to the courts. 

' 1920 Stale v. Battels Iowa 181 N.W. 508; 1921 Pohl v. State Ohio 

132 N.E. 20; 1919 Nebraska District v. McKelvie 104 Neb. 93 17s N.W. 531; 1923 
Meyer v. State Neb. 186 N.W. .