FREEDOM OF RELIGION AND SPEECH AND THE UNITED STATES SUPREME COURT

Published date01 May 1954
Date01 May 1954
DOIhttp://doi.org/10.1111/j.1468-2230.1954.tb02151.x
FREEDOM
OF
RELIGION AND SPEECH
UNITED STATES SUPREME COURT
AND
THE
FIVE
years ago
H.
H.
Pear discussed, in this
Review,’
a
number
of recent decisions of the
U.S.
Supreme Court which dealt with
religious freedom under the First Amendment of the
U.S.
Constitu-
tion.2 The article concluded with an analysis of the Illinois
released time
’’
case in which arrangements made by school
authorities at Champaign, Illinois, for religious instruction in public
schools to be conducted by private teachers of the various faiths
were held to be contrary to the First Amendment. Whether one
agreed with this decision
or
not,
it
had the virtue of settling the
constitutional relationship between State and Church in
a
clear-cut
manner. Four years later, in the New
York
released time
case,4 the same court threw the matter back into hopeless confusion.
The principal significance of the
McCollum
case lay in the fact
that eight out of nine justices interpreted the First Amendment as
banning not only the preferential treatment of one religion compared
with another but also all measures supporting religion, including
those supporting all religions.5 Few decisions have been the subject
of controversies as bitter as that developing out of this case. Its
opponents, among them many Catholic groups, attacked
it
as being
hostile to religion and therefore
in
conflict with the religious nature
of the American people. Its supporters referred to the writings of
Jefferson and of Madison to show that the First Amendment was
1
“The
U.S.
Supreme Court and Religious Freedom,”
12
Modern
Law
Review
167.
2
‘‘
Congress shall make no law respecting an establishment
of
religion, or pro-
hibiting the free exercise thereof; or abridging the freedom of speech or of the
press;
or
the right of the people peaceably to assemble, and to petition the
government
for
a redress of grievances.” It is settled law that the prohibitions
of the First Amendment, in particular those against abridgment of freedom
of
religion, speech and the press, are not only binding on federal authorities, but
applicable to state authorities through the
due process
clause
of
the Four-
teenth Amendment:
‘’
.
. .
nor shall any state deprive any person
of
life,
liberty, or property, without due process of law.”
3
McCoZZum
v.
Board
of
Education
(1948) 333
U.S.
203.
4
Zorach
v.
CZauson
(1952)
343
U.S.
306.
5
“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
to
another.
. .
.
the clause against establishment of religion was intended
to
erect a
wall of separation
between Church and State.” This definition was
first laid down in
Everson
v.
Board
of
Education
(1947) 330 U.S. 1,
discussed
in Pear’s article,
supra,
at pp.
177-80.
That decision, however, aroused much
less attention than the
McCoZZum
case, mainly because the court then held that
the practice complained of (refund by school authorities of school
bus
fares paid
by parents
of
children attending parochial schools) did not amount to
estab-
lishment of religion
as defined by the court. In the
McCoZZunz
case, however,
the actual determination demonstrated the broad nature of the definition.
220

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT