Brown v. Orange County Bd. of Public Instruction, 2018
| Decision Date | 23 December 1960 |
| Docket Number | No. 2018,2018 |
| Citation | 128 So.2d 181 |
| Parties | Sidney BROWN, Sidney Gluckman, Samuel W. Harris, Louis Katz, Dr. Morton Levy, Avner Lewis, Dr. Gordon F. Lewis, Harry Rachtman and Dr. Rodman Shippen, on their own behalf, and in behalf of all other persons similarly situated, Appellants, v. ORANGE COUNTY BOARD OF PUBLIC INSTRUCTION, R. Earl Kipp, Superintendent of Public Instruction, Brantley Burcham, Hermet E. Smith, R. N. Heintselman, Mrs. G. B. Fishback and Mrs. Leslie Turner, Board Members, Appellees. |
| Court | Florida District Court of Appeals |
Jerome J. Bornstein, Orlando, for appellants.
J. R. Wells and Allen K. McCormick, Maguire, Voorhis & Wells, Orlando, for appellees.
The appellants filed an action in the lower court seeking declaratory and injunctive relief against the appellees as officials of the Orange County public school system, who authorized and permitted the distribution of Gideon Bibles in the public schools. The plaintiffs alleged their standing to bring this suit as taxpayers and as parents of children attending various public schools in Orange County. The complaint alleged the background and nature of the Gideon Society; alleged that the distribution of the Gideon Bible is of sectarian significance to the Protestant faith but its distribution violates the tenets of plaintiffs' religious faith; and that the distribution by defendants of this book violated certain rights of the defendants under the United States and Florida Constitutions.
The Gideon organization was founded July 1, 1899, in Janesville, Wisconsin. The name 'Gideon' is derived from a Bible hero who, with a small band, defeated the Midianites and ruled Israel for 40 years.
To be a Gideon requires membership in a Protestant church. Practically everyone who has travelled will remember seeing a Bible in his hotel room which was presented to the hotel by the Gideons. This Bible is the standard King James version. The Bible which is usually presented for school children is composed of the New Testament and Psalms and Proverbs of the Old Testament.
It is estimated that over four million Bibles have been donated by the Gideons since they started distributing Bibles. The Gideons, in addition to utilizing the hotels and other lodging accommodations, have used the facilities of the public school system to distribute their Bibles to school children. It is the utilization of the public school facilities such as in the instant case that has invoked the opposition of non-Protestant religious groups.
The defendants filed a motion to dismiss on the grounds that the complaint failed to state a cause of action; that plaintiffs had no standing to bring this suit; that plaintiffs had failed to allege sufficient facts entitling them to declaratory or injunctive relief; and that plaintiffs had not alleged any facts tending to show a violation by defendants of any rights guaranteed to plaintiffs by the Constitutions of the United States and the State of Florida.
The lower court granted defendants' motion to dismiss but did not specify any particular ground for dismissal. After plaintiffs elected not to amend, a final judgment was entered on the dismissal of the complaint and plaintiffs appealed to the Supreme Court. That court, after noting that its jurisdiction had been improvidently invoked, transferred the cause to this court.
The plaintiffs contend that, as taxpayers and residents of Orange County, Florida, they have the right to see that public funds and other public property in Orange County are not used in aid of churches or sectarian purposes and cite in support of this contention Southside Estates Baptist Church v. Board of Trustees, Fla.1959, 115 So.2d 697. The defendants answer that Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475, disposes of a similar 'standing as a taxpayer' contention and that the plaintiffs have thus failed to support their status to bring this suit.
Aside from the 'taxpayer' contention, the plaintiffs contend that, as parents of children attending the public schools in which the alleged unconstitutional acts are committed, there can be no question of their standing to bring this action. With this we agree on the basis that these parents, having an immediate and direct interest in their natural children's spiritual and religious development, are possessed of the requisite standing in that this interest is alleged to be encroached upon. See State of Illinois ex rel. McCollum v. Board of Education, 1948, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; Zorach v. Clauson, 1952, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954.
The complaint alleges that the defendants had permitted and authorized annual distributions of the Gideon Bibles in the Junior High Schools of Orange County during the 1956-57, 1957-58, 1958-59, and 1959-60 school years. No allegation is made that the distribution of Bibles has been completed for the current year, nor is there an allegation that the defendants have positively manifested that such distribution will occur in the future. The complaint does aver that plaintiffs have requested the defendants discontinue this practice of compelling plaintiffs' children to attend assembly on school property to receive these Bibles; that the defendants have refused to grant this request; and that defendants will continue to authorize and permit this distribution of Gideon Bibles unless enjoined by the court.
The complaint points out that the Gideon Bible consists of the New Testament, Psalms and Proverbs from the Old Testament, and is the King James version of translation; that this version of the Bible is primarily Protestant and violates the teachings and tenets of the religious faith of plaintiffs; and that distribution of this Bible by the defendants aids certain religious groups and therefore violates plaintiffs' rights under the First Amendment to the United States Constitution and Section 6, Declaration of Rights of the Florida Constitution, F.S.A. There are other allegations of the lengthy but skilfully drafted complaint which make similar averments but we have summarized a sufficient portion to illustrate the issues with which we are here confronted.
The question of separation of church and state, aside from its recent widespread publicity, has been judicially discussed and delineated in light of numerous factual situations. Under even the most strict interpretation, the First Amendment of the United States Constitution forbids preferential treatment by government, Federal or State, of one sect or religion over others. Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711; Fowler v. State of Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828; Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954.
The doctrine of separation of church and state can be best understood in light of its history of the struggles and conflicts through the centuries which precipitated its inclusion in the First Amendment. No attempt to narrate this history will be made in this opinion but for a thorough account of this subject see Tudor v. Board of Education, 14 N.J. 31, 100 A.2d 857, 45 A.L.R.2d 729, and Justice Rutledge's dissent in Everson v. Board of Education, supra.
Section 6, Declaration of Rights of the Florida Constitution provides:
'Religious preferences; public aid, etc.--No preference shall be given by law to any church, sect or mode of worship and no money shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution.'
The prohibition against preference which is implicit in the First Amendment is explicitly provided for in the above quoted portion of the Declaration of Rights. It is clear that state power is no more to be used so as to handicap religions than it is to be used to favor them. Koerner v. Borck, Fla.1958, 100 So.2d 398. More expressly, neither a public school system nor its property can be employed in permanent promotion of any particular religious sect or denomination. See Southside Estates Baptist Church v. Board of Trustees, Fla.1959, 115 So.2d 697, 699, wherein Mr. Justice Thornal emphasized this proposition but differentiated the issue involved in that case from the issue presented in the instant case by stating:
During the development of constitutional law in this century certain substantive personal rights gained...
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