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His conclusion consists largely of a quotation from Madison's "Memorial and Remonstrance Against Religious Assessments." To those who hold the view that the regents' official prayer "is so brief and general there can be no danger to religious freedom" he finds the words of the author of the first amendment an adequate answer: "It is proper to take alarm at the first experiment on our liberties. * ✶ ✶ Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?" Justice Black's final footnote will be reserved for later comments in connection with the dissenting opinion of Mr. Justice Stewart.

89

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The concurring opinion $$ of Mr. Justice Douglas could readily be dispensed with. Its scholarship is indifferent and its reasoning tends to confuse the issue. Douglas, who had written the opinion (with Justices Jackson, Black, and Frankfurter each writing dissenting opinions) in Zorach v. Clauson, and who quotes with approval a clause from that opinion, now regrets his vote with the majority (a 5-to-4 decision) in Everson." That decision "seems in retrospect to be out of line with the first amendment." " The test he would apply in all such cases appears to be whether or not the State gives financial support to the activity. In the instant case, at least partly because the teacher "leads in prayer," ,, the teacher being "the only one who need utter the prayer": (statements of dubious accuracy and not before the Court for adjudication; no teacher was complaining; though such a requirement, if before the Court, would almost certainly render the rule unconstitutional), the State is helping to defray the costs of a religious exercise. All such examples of State support are unconstitutional, among them schoolbuses used to transport pupils to church-supported schools, lunches, textbooks, or tuition for students in parochial or other church schools.

93

Both Mr. Justice Douglas' concurring opinion and Mr. Justice Stewart's dissent added to the confusion of understanding and the unpopularity of the decision among churchmen, many laymen, and some of those who were familiar with the Court's rulings on this touchy subject. Where Justice Black for the majority placed his emphasis upon the fact that the prayer was composed and sanctioned by officials of the State, Justice Stewart begins by saying that "A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day," and that the Court "today decides that in permitting this brief nondenominational prayer the school board has violated the Constitution of the United States." 94 He interprets the decision as denying "the wish of these schoolchildren to join in reciting this prayer," and the decision therefore serves "to deny them the opportunity to share in the spiritual heritage of the Nation." This is a strained and disingenuous interpretation of what was at issue, for the prayer was composed and sanctioned by State officers. There was no evidence that the students had expressed a "wish" for this or any other prayer. His argument is stronger when he says that the Court is not here concerned with the establishment of a "state church," the issue usually involved in the controversies of 17th and 18th century England and America. He sees the regents' prayer as no more an establishment of religion than the "countless practices of the institutions and officials of our government." Among them he cites or quotes the invocation at the opening of each session of the Supreme Court, the opening of each session of the national House and Senate with prayer, the custom followed by all Presidents at the time of their inauguration of asking "the protection and help of God." Similarly the third stanza of "The Star Spangled Banner," "The Pledge of Allegiance to the Flag." the motto "In God We Trust" on our coins all follow the example of the final sentence of the Declaration of Independence in acknowledging or invoking the "Protection of Divine Providence."

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Ibid., p. 436.

Ibid., pp. 437-444.

* 343 U.S. 306.

330 U.S. 1.

370 U.S. 421, 443.

Ibid., p. 441.

Ibid., p. 438.

Ibid., pp. 444-445.

Ibid., p. 445.

Ibid., pp. 446-449.

Like Justice Black, Justice Stewart does not mention the two leading cases on the meaning of the establishment clause, Everson v. Bd. of Education, 330 U.S. 1 (1947) and McCollum v. Bd. of Education, 333 U.S. 203 (1948). He does quote from West Fa Bd. of Ed. v. Barnette, 319 U.S. 624 (1943), which deals with the free exercise, not the establishment clause.

To Mr. Justice Stewart, and to many who opposed the School Prayer decant the rights of minorities were not involved, either because "We are a religi people whose institutions presuppose a Supreme Being," or because those dren who wished to do so could remain silent or be excused from the room! apparently was as difficult for Justice Stewart as for churchmen of certain s to recognize that to some men, women, and children of good will an offatai" composed and sanctioned prayer, recited at the begining of each school day » an infringement of their rights. The parents of 10 pupils in the school distr of New Hyde Park brought this action "insisting that use of this official prayer was contrary to the beliefs, religions, or religious practices of both themselves an their children." The majority opinion had expressed the view that the Coura ruling does not "indicate a hostility toward religions or toward prayer. Not of course, could be more wrong." 9s

Mr. Justice Black's final footnote" has largey been ignored. It appears! have been added as an answer to Justice Stewart's dissent. In it be are that there is nothing in the decision inconsistent with the practices that sch-children and others are "officially encouraged" to engage in—“patriotic or (97% monial" recitations of the “Declaration of Independence" or singing of 13 national anthem, both containing professions of faith in a Supreme Being-** that bear "no true resemblance of the unquestioned religious exercise that *: State of New York has sponsored in this instance." This note would seen · indicate that the Court finds nothing harmful to the rights of religious minor ties in these and other manifestations in our daily life of references to God.

101

The conception of a "wall of separation between church and state"**** appear to be as applicable to the compulsory reading of the Bible in pus schools or to the recitation of the Lord's Prayer, both of which will be cofis.. ered by the Court during the 1962 term. It is equally evident that the Cem has not ruled on the recitation of a prayer composed by pupils and voluntam recited by them. A prayer composed by a teacher, who is an officer of the Sta to be recited by the pupils, would appear to fall within the rule in Engel prayer recited by the teacher in the presence of pupils is not covered, though at official requirement that the teacher do so is pretty clearly unconstitutional teacher might call for a moment of silent prayer, and that may very wel the solution to a situation affronting the religious feelings of many per What is most strongly to be hoped for is that neither this nor any other decisi or any proposal for action by Congress, such as the formulation of a const": tional amendment (the wording of which presents almost insuperable problegs will lead to divisive controversy in an area where Americans, like most othe are prone to substitute dogma for reason.

Perhaps the fundamental issue of the School Prayer case is the reach of th principle of religious toleration. Surely that is basic to the well-being of religi particularly in a country where religious diversity is much greater than in last quarter of the 18th century. In the United States today everyone is in a t nority. The right to differ on questions involving religious belief or disbelief is as fundamental as any right with which we are concerned. Apparently many pe at least many articulate people, who think that those who are not affiliated wit some religious body belong in outer darkness and that their children can e stitutionally be made to feel this position by nonparticipation in a school prape

97 Mr. Justice Stewart quotes this clause from the opinion in Zorach v. Clauson 34375 306, 313 on p. 450 of his dissenting opinion. It is also quoted by its author. Mr. J Douglas, on p. 442. It is regrettable that so many of those who are usually ***the first to champion the rights of minorities seem oblivious of the rights of those minor to whom a prayer to be recited by students each day in a public school is a violation of feelings and beliefs. Even Reinhold Niebuhr urges that local communities be allow! work out their own solutions to such differences, a position he would never support it t rights of racial minorities, or minority groups espousing heterodox economic or pa ideas, were involved. Moreover, he advocates this latitude for school boards_in_the_ of pluralism, as well as localism. He urges judicial self-restraint upon the Court deplores the extension of the 14th amendment to "administrative procedure,” expect when the local regulation is not "clearly in violation of the Constitution." Christianily Crisis, vol. 22 (July 23, 1962), pp. 125–126. With this lack of sympathy for rel minorities (and imperfect acquaintance with the history of the 14th amendment) contes that of a leader of the Los Angeles bar. Walter Ely, "The President's Page." Los Ar zeies Bulletin, vol. 37 (September 1962), pp. 375–377.

8 370 U.S. 421, 434.

Note 21 on p. 435.

100 This phrase from a reply by Jefferson to an address to him by the Danbury Rapt Association was quoted by Chief Justice Waite in Reynolds v. U.S., 98 U.S. 145, 164 (1978 and again by Justice Black in Everson, 330 U.S. 1, 16.

101 The Court on Oct. 8, 1962, took jurisdiction of cases from Pennsylvania and Marshal involving these State requirements.

Such conformists either do not know or think it irrelevant that many of the Founders were not members of any church, among them Madison, Jefferson, and Franklin, a trio which includes the principal authors of the Declaration of Independence, the Constitution, and the Bill of Rights, and one of those whose devotion and great service as an ambassador and conciliator made possible both independence and the establishment of the Republic.

III. OTHER CASES ON CIVIL LIBERTIES

At the beginning of this article it was observed that though some 34 decisions in the 1961 term involved civil liberties, none, other than the School Prayer case, attracted any very general comment, or seemed to depart markedly from previusly announced doctrines.

102

For example, no landmark case probed further into the grave issues concerning the movement from segregation to integration. The Court did announce in a brief and unanimous per curiam opinion that "We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. *** The question is no longer open; it is foreclosed as a litigable issue." A three-judge court is, therefore, not required to be convened to try the case brought by Negroes in Mississippi who charged that they had been denied their right to nonsegregated service, alleging that such rights had been denied them under cover of State statutes, municipal ordinances, and State custom and usages. A similarly brief per curiam opinion sufficed to dispose of the case of a Negro refused nonsegregated service in a privately operated restaurant located in the Memphis airport.103 A three-judge court is not required for disposition of that case either; injunctive relief must be granted by the district court under the rule in Burton v. Wilmington Parking Authority.104

Most of the issues involved in the sit-in demonstrations are yet to be decided. In the 1961 term the Court made clear that arrests for the crime of disturbing the peace will not be sustained when the only evidence in support of that charge was that defendants participated in peaceful sit-in demonstrations at "white" lunchcounters in Baton Rouge, La., for the purpose of protesting against racial segregation.105 There being no evidence of acts which the Court (speaking by the Chief Justice) could accept as disturbing the peace, the arrests were in violation of the dne process and equal protection clauses of the 14th amendment, even though one of the cases involved a sit-in demonstration in a privately owned drugstore and another in Kress' Department Store. The third involved a restaurant in a Greyhound bus terminal. The Court found it "unnecessary to reach the broader constitutional questions presented," resting its decision on the absence of any evidence of a breach of the peace.'

106

Several decisions of the term give additional evidence of the Supreme Court's determination to see that the lower Federal courts do not brush aside the petitions of convicts for leave to take a direct appeal to a court of appeals in forma pauperis. This solicitude, not only for persons accused of crimes but also for those convicted but alleging fault in the trial procedure, can be seen either as a principled and generous attempt to attain the goal of legal procedures equally open to all, whether they be rich or penniless, or as an unrealistic solicitude for criminals, one that is wasteful of the limited time of the lower Federal courts. Certainly a majority of the Supreme Court has been determined to recognize the disadvantage of those accused, and even those convicted, of crimes who lack the means to pay for transcripts or to pay other fees necessary for preparing and presenting appeals. This attitude is essentially an extension of the right to Counsel.107 In Coppedge v. United States 108 the Chief Justice noted that "During the past 5 terms of the Court, we have found it necessary to vacate and remand for reconsideration 14 cases in which a court of appeals has applied an erroneous standard in passing on an indigent's application for leave to appeal." Our criminal statutes make appeal a matter of right; the petitioner may not be required to show that his appeal has merit. “He is to be heard *** if he makes

19: Bailey v. Patterson, 369 U.S. 31 (1962).

1 Turner v. Memphis, 369 U.S. 350 (1962).

104 365 U.S. 715 (1961).

1 Garner v. Louisiana, 368 U.S. 157 (1961).

See also Taylor v. Louisiana, 370 U.S. 154 (1962).

Among the cases of the term dealing with one or another aspect of this issue and coming from State courts are Hamilton v. Alabama, 368 U.S. 52 (1961), Chewning v. Cunningham, 368 U.S. 443 (1962), and Carnley v. Cochran, 369 U.S. 506 (1962).

10369 U.S. 438 (1962).

a rational argument on the law or facts. It is the burden of the Governme opposing an attempted criminal appeal in forma pauperis, to show that the m is lacking in merit. ***" 109 Justices Clark and Harlan dissented on the tr-that the petitioner must show that his grounds are not frivolous. They w that is to say, shift the burden of going forward, and they would accord weight" to the trial judge's certificate of frivolity.

Oyler v. Boles 110 is perhaps principally significant as an indication of the tinuance until the retirement of Mr. Justice Whittaker and Mr. Justice Fra furter of a 5 to 4 division on several kinds of civil liberties cases. In this ins the procedure of West Virginia in applying its "habitual criminal" statute before the Court. A majority, speaking by Justice Clark, sustained the app tion of the act against a charge of a denial of due process. Justice Douglas, the concurrence of the Chief Justice and of Justices Black and Brennan, disse. on the ground that procedural requirements (principally the absence of pres notice of the nature of the charge based upon previous convictions) lacked process.

112

111

Among the other decisions involving persons accused of crimes three se warrant brief mention. Lanza v. New York skirts the issue decided the o vious year in Mapp v. Ohio, in which the Court overruled previous decisions. held that the fourth amendment protection against unreasonable searches. seizures-i.e., the right to privacy even in a world of electronic devices-ajo to the procedure in State as well as Federal courts. The peculiarity of Lev. that the electronic eavesdropping was done in a visitors' room in a jail; the C held that such a room is not the equivalent of a man's “house," that “a jail «4 none of the attributes of privacy of a home, an automobile, an office, or a 2room." 113 If the conversation thus overheard had been that of prisoner and counsel, the majority opinion might have shown a somewhat different att toward such devices and the evidence so obtained. Whether the fact that it between the prisoner and his brother renders the situation different under (19 fourth amendment right to privacy is not completely clear-not so much beca * opinions of the Chief Justice and Mr. Justice Brennan insist that the cort tional issue was not before the Court, as because the majority opinion of à Justice Stewart, while referring to the fourth amendment (but not citing V rests on the point that two counts in the case against Lanza were in no *1* related to the evidence procured by electronic eavesdropping. Mr. Justice Ha concurred in a two-sentence opinion. He said that he understood that the m sion was not based upon the proposition that the 14th amendment incorp ra provisions of the 4th.

Another question of incorporation is found in Robinson v. California.TM B over the dissent of Mr. Justice Clark and of the recently appointed Mr. J White, the Court held invalid, as a cruel and unusual punishment in vica of the 8th and 14th amendments, a California statute which made it a cri offense for a person to "be addicted to the use of narcotics." While mak clear that the authority of the State to control the traffic in narcotics, or antis or disorderly behavior resulting from the use of narcotics, was not involved "Court held that the State may no more punish a person for being an unrefortaddiet of narcotics than for being afflicted with leprosy or a venereal dise Narcotic addiction is a form of illness. The State may not punish an addic* ** has never touched a narcotic drug while in California or been guilty of irreg behavior. Even a single day in prison “would be a cruel and unusual puni ment for the 'crime' of having a common cold."

Two concurring and two dissenting opinions accompanied this judgment Be cause of his recent appointment to the Court, the dissent of Mr. Justice Wh is particularly interesting. He would not rest the decision on a constitution ground; the application of the cruel and unusual punishment clause is far-fetc and unnecessary. The statute can be interpreted in a manner to save its es stitutionality. What the Court has done, probably because of its "alergy to wr stantive due process" in cases involving economic regulation, is to re California's power to deal with "the recurring case under the statute where the is ample evidence of use ***"" 115

100 Ibid., p. 448.

110 368 U.S. 448 (1962).
111 370 U.S. 139 (1962).
112 367 U.S. 643 (1961).
113 370 U.S. 139, 143.
114 370 U.S. 660 (1962).
115 Ibid., p. 689.

116

ase combining several issues which touch off moral prejudice, as well as tions concerning freedom of the press, is Manuel Enterprises v. Day. It ed the authority of the postmaster at Alexandria, Va., and ultimately of the Office Department, to bar from the mails magazines composed primarily mosexuals and containing advertisements which allegedly gave information e obscene matter" could be obtained. The Supreme Court reversed the of Appeals for the District of Columbia which had affirmed a district court ›n denying injunctive relief to the publishers. The members of the majority Justice Clark dissented) could not agree on an opinion. Justice Harlan, by Justice Stewart, found that the magazines were not obscene under ished criteria, and that the Government had not proved that the publishers that the advertisers were offering obscene matter for sale. Justice Bren›ined by Chief Justice Warren and Justice Douglas, concurred on the ground ne applicable act of Congress 7 does not authorize the Postmaster General ude matter from the mails on his own determination that it is obscene. He that the Court had recently sustained the criminal sanctions of section 1461 t a challenge of unconstitutionality under the first amendment, but ted the view that the Government is "not free to adopt whatever procedures ses for dealing with obscenity *** without regard to the possible conces for constitutionally protected speech." The essential procedural ards are lacking.

"119

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Justice Black concurred in the result. Mr. Justice Frankfurter and the appointed Mr. Justice White did not participate. Mr. Justice Clark dis, saying that the congressional mandate was clear, that despite this staturovision, the Court's ruling "requires the U.S. Post Office to be the s largest disseminator of smut and grand informer of the names and where obscene material may be obtained." It seems apparent that the involved have not finally been disposed of.

es involving questions of Communist subversion and of the authority and ure of legislative investigating committees were not wholly absent in the rm, but they were less inflammatory than those of recent years. The Court hed divided in most such cases.

jan v. United States,120 involving the non-Communist oath required of an of a labor union, was decided by a 5-to-4 majority on narrowly procedural is. The majority of five, speaking by Mr. Justice Whittaker, expressed the hat nothing in the Labor-Management Relations Act makes membership affiliation with the Communist Party a crime, but does make the utterance lse affidavit a crime. The constitutionality of section 5 of the Communist ol Act of 1954 was not considered. The case was sent back to the district for retrial on grounds relating primarily to whether certain Government need be produced in evidence. In three opinions the minority, which conof the Chief Justice and Justices Black, Douglas, and Brennan, urged that a th could not be constitutional and that American Communications Assn. v, 121 should be overruled, that only illegal activity and not mere membership Communist Party is a crime," or that the instructions to the jury in the f Killian were defective even under the Douds rule.12 A very real dife of opinion divides the Court on the issues involved in this and similar Moreover, two members of the Killian majority have been replaced by pointees whose views on the subject are unknown.

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Court was, by contrast, unanimous in holding unconstitutional, because it o vague as to deny due process of law, a Florida statute requiring every school teacher, together with other State employees, to execute an oath alty of immediate discharge that he had not, did not, and would not lend upport, advice or counsel, or influence to the Communist Party.1 The ant, a public school teacher, refused to take the oath, though alleging that oyal to the Constitution of the United States and is not, nor ever had been, ber of, nor had he ever given any aid or advice to, the Communist Party. tate courts sustained the law. On appeal the Supreme Court, speaking by

0 U.S. 478 (1962).

SU.S.C. § 1461.

oth v. U.S., 354 U.S. 476 (1957).

noted from Marcus v. Search Warrant of Property, 367 U.S. 717, 731 (1961). 68 U.S. 231 (1961).

39 U.S. 382 (1950).

Duglas, J., dissenting, 368 U.S. 231, 261-267.

ennan, J., ibid., pp. 267-277.

amp v. Board of Public Instruction, 368 U.S. 278 (1961).

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