It has been nearly a half century since the U.S. Supreme Court issued its landmark decisions striking down state-sponsored prayers in the public schools. On Tuesday evening at the court, a scholarly lecture about one of those decisions kicked off what is likely to be a good deal of nostalgia and renewed debate about the cases.
In 1962, in Engel v. Vitale, the court invalidated a New York law requiring daily recitations of a prayer composed by the state Board of Regents. In 1963, in Abington School District v. Schempp, the court struck down practices that were much more prevalent in other states: school-led recitations of Bible verses and the Lord’s Prayer. For years, critics have accused the high court of nothing less than causing the decline of American public education.
Douglas Laycock, a professor of law and religious studies at the University of Virginia, focused on the Schempp case, for which the Supreme Court is widely viewed as more directly and forcefully confronting the long U.S. tradition of school-led prayers than it had the year before in Engel.
“Ending school-sponsored religious exercises was an idea whose time had come,” said Laycock, who was delivering the last in a Supreme Court Historical Society series this spring about the people behind the court’s religion cases. Laycock, a preeminent scholar on church-state issues, was introduced at the May 10 event in the courtroom by Justice Anthony M. Kennedy. (I wrote here about another lecture in the series, on the 1972 case of Wisconsin v. Yoder.)
While there were several lawsuits in the late 1950’s and early 1960’s challenging public school religious exercises around the country, the story of the Schempp family of Abington, Pa., is the most compelling, Laycock said.
Edward Schempp and his wife, Sidney, were Unitarians who encouraged their children to think for themselves. The Schempps did not believe in the Holy Trinity or in an anthropomorphic God as conveyed in the King James Bible, the version used by many Protestant denominations and used in the public schools since the 19th Century, when educator Horace Mann of Massachusetts introduced the idea of reading Bible verses without comment to children in the “common schools.”
Edward Schempp objected to the daily Bible verses and Lord’s Prayer delivered by students in the Abington schools. He didn’t think many verses of the Bible were appropriate for reading to schoolchildren without further instruction or context. “But he wasn’t sufficiently motivated to do anything about it,” said Laycock.
Enter the Schempps’ oldest son, Ellery, who in November 1956 started a personal protest against the religious exercises, one he had given much thoughtful consideration. Ellery, a junior at Abington High School at the time, “put a borrowed Koran on his desk, opened it to a random page, and kept it open while the morning prayers were delivered,” Laycock said.
Ellery faced consequences at school, but he was eventually allowed to leave his homeroom class during the daily devotionals. But he personally contacted the local chapter of the American Civil Liberties Union to see whether it would be interested in challenging the 1913 Pennsylvania law mandating the daily religious exercises.
“Abington v. Schempp was not a test case stirred up by lawyers looking for a client,” Laycock noted.
After internal debate and vetting of the Schempp family for the difficulties they would likely face as plaintiffs, the ACLU sued the school district based on the First Amendment’s establishment and free-exercise of religion clauses.
Because the suit challenged the constitutionality of a state statute, prevailing federal law at the time called for a special three-judge federal district court to consider it, with a direct appeal to the U.S. Supreme Court the next stop. The three-judge court sided with the Schempps in 1959. The case likely would have been the first school prayer case to be decided by the Supreme Court, but Pennsylvania amended its law to allow students to opt out of the religious exercises, which resulted in a fresh round of arguments in the three-judge court before those judges again struck down the law in 1962.
In the meantime, the challenge to New York’s law had reached the high court, and in the spring of 1962, the court voted 6-1 to strike it down as a violation of the establishment clause.
The Abington school district’s appeal of the Schempp case, as well as a challenge to religious exercises in the Baltimore schools by the atheist Madelyn Murray, reached the court that spring, and the justices agreed to take them up as well.
On June 17, 1963, the court voted 8-1 that daily Bible readings and the Lord’s Prayer in the public schools violated the establishment clause. (Justice Potter Stewart was the lone dissenter in both Engel and Schempp.)
Laycock noted that it would have been customary for the Supreme Court to release its 1963 decision under the caption of the Baltimore case, Murray v. Curlett, since that appeal had reached the court ahead of the Schempp case. But Justice Tom Clark, who wrote the main opinion, probably found several good reasons to chose to put the Schempp case first.
For one thing, the Schempp case had had a full trial and a better-developed record than the Baltimore case, and Clark’s opinion focused more on the facts of the Pennsylvania case. But considering that the court’s 1962 Engel decision had already come in for monumental public criticism, there were other considerations.
“The Schempps were an intact nuclear family that went to church every week,” Laycock said. Madelyn Murray (later O’Hair) was an outspoken atheist, an unwed mother, had a foul mouth, and had applied for Soviet citizenship, he said.
“Probably the court knew only some of this, but it knew enough,” he said.
Laycock said that many of the personal case details in his lecture came from the book Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer, by Stephen D. Solomon (University of Michigan Press, 2007). I can also heartily recommend Solomon’s book.
Solomon, an associate professor at New York University who interviewed Schempp family members and others involved in the case, notes in the book that while the school prayer decisions were met with protests and widespread non-compliance, at least the Abington school district promptly obeyed the court’s mandate.
Over the next five decades, controversies over religious expression in public schools would abound. The Supreme Court would strike down clergy-led prayers at graduation ceremonies (Lee v. Weisman), student-led prayers over the intercom at high school football games (Santa Fe Independent School District v. Doe), but uphold requiring equal treatment of student Bible clubs in secondary schools (Westside Community Board of Education v. Mergens).
Other cases have never been decided by the justices but continue to percolate: Bible distribution in schools, prayers by valedictorians or other student speakers at graduation, religious themes in student classwork, and school-led recitations of the Pledge of Allegiance, with the words “under God.”
Laycock noted that because he had graduated from Abington High School during the course of the litigation over school prayer, Ellery Schempp was substituted as a plaintiff in the suit by his younger siblings. Despite efforts by an administrator at the high school to discredit him in his college recommendations, Ellery was accepted at Tufts University, where he became active in civil rights and a supporter of John F. Kennedy’s presidential campaign. He earned a doctorate in physics from Brown University, and, among other things in his career, helped develop medical imaging technology for General Electric. Now in his 70s, he is retired and lives in the Boston area.
In 2002, Ellery Schempp was inducted into Abington High School’s hall of fame for his achievements in science. But among Schempp’s other accomplishments, the school noted the following: “Initiated school prayer suit against Abington which was eventually decided by the U.S. Supreme Court in 1963.”
A version of this news article first appeared in The School Law Blog.