Chamberlin v. Dade County Bd. of Public Instruction, s. 31545

• Decision Date: 06 June 1962
• Docket Number: Nos. 31545,31546,s. 31545
• Citation: 143 So.2d 21
• Parties: Harlow CHAMBERLIN, in his own behalf and in behalf of all other persons similarly situated, Appellant, v. The DADE COUNTY BOARD OF PUBLIC INSTRUCTION et al., Appellees, v. David HUME et al., Intervening Appellees. Edward RESNICK, Philip Stern, and Elsie Thorner, in their own behalf, and in behalf of all other persons similarly situated, Appellants, v. The DADE COUNTY BOARD OF PUBLIC INSTRUCTION et al., Appellees, v. David HUME et al., Intervening Appellees.
• Court: Florida Supreme Court

Page 21

143 So.2d 21

Harlow CHAMBERLIN, in his own behalf and in behalf of all other persons similarly situated, Appellant, v. The DADE COUNTY BOARD OF PUBLIC INSTRUCTION et al., Appellees, v. David HUME et al., Intervening Appellees.

Edward RESNICK, Philip Stern, and Elsie Thorner, in their own behalf, and in behalf of all other persons similarly situated, Appellants, v. The DADE COUNTY BOARD OF PUBLIC INSTRUCTION et al., Appellees, v. David HUME et al., Intervening Appellees.

Nos. 31545, 31546.

Supreme Court of Florida.

June 6, 1962.

Rehearing Denied July 31, 1962.

Howard W. Dixon, Herbert L. Heiken and Tobias Simon, Miami, for Harlow Chamberlin.

Smith & Mandler, Miami Beach, and Leo Pfeffer, New York City, for Edward Resnick et al.

Bolles & Prunty, Miami, for Dade County Board of Public Instruction, et al.

Brigham, Wright, Goodwin & Dence and E. F. P. Brigham, Miami, for David Hume et al.

CALDWELL, Justice.

These two cases are here upon direct appeal from a final decree of the circuit court of Dade County construing controlling provisions of the federal and state constitutions, ruling upon the validity of a state statute and upon certain complaints hereinafter discussed.

Harlow Chamberlin, on his own behalf and in behalf of all other persons similarly situated, a plaintiff below, appellant here and Edward Resnick, Philip Stern and Elsie Thorner, in their own behalf and in behalf of all other persons similarly situated, plaintiffs below, appellants here, brought separate actions against the Dade County Board of Public Instruction, appellee here, to enjoin certain alleged religious practices in the Dade County public schools, praying that Section 231.09, F.S.A., be declared to be in violation of the First and Fourteenth Amendments to the United States Constitution and Sections 5 and 6 of the Declaration of Rights of the Florida Constitution, F.S.A. Nether suit alleged specific acts as being in violation of Section 5 of the Declaration of Rights of the Florida Constitution.

Both complaints seek relief by way of injunction and declaratory judgment and, as to the specific acts asserted to be in violation of the federal and state constitutions, they are identical.

The chancellor found that both cases involved similar issues and prayers for relief and consolidated them for the purpose of trial. A single brief is submitted in this appeal on both cases.

The plaintiff in the Chamberlin suit is an agnostic and the plaintiffs in the Resnick complaint are Jewish and Unitarian. The defendants in both suits are the Dade County Board of Public Instruction and its individual members.

In both actions, certain individuals, consisting in the main of clergymen and parents of children in the public schools, were permitted by the court to intervene as defendants.

In substance, the complaints allege that, in the public schools, the defendant observes the following practices:

Regular reading of the Bible; comments on the Bible; distribution of sectarian literature to school children; after hours Bible instruction; regular recitation of the Lord's Prayer, grace and other sectarian prayers; singing of religious hymns; religious observance of the Christmas, Hannukka and Easter holidays, including instruction in the dogma of the Nativity and Resurrection; display of religious symbols, baccalaureate programs; conducting a religious census and the use of religious tests for employment and promotion of school employees.

After a prolonged trial and the taking of some 1400 pages of testimony, the chancellor enjoined: Sectarian comments on the Bible by public school teachers; the use of school premises after school hours for Bible instruction; the exhibition of films with religious content and the religious observance in the public schools of Christmas, Easter and Hannukka holidays.

The chancellor rejected the complaints alleging: The reading of the Bible; the distribution of sectarian literature to school children; the recitation of the Lord's Prayer, grace and other sectarian prayers; the singing of religious hymns; the display of religious symbols; baccalaureate programs; the conducting of a religious census and the use of religious tests for employment and promotion of school employees, all upon grounds hereinafter discussed.

The plaintiffs allege that the defendants by their conduct in the public school system of Dade County are in violation of the First and Fourteenth Amendments to the United States Constitution and Sections 5 and 6 of the Declaration of Rights of the Florida Constitution, the pertinent language of which is in the footnote. ¹

The plaintiffs contend that attendance upon or participation in the complained of religious practices is in violation of both the 'establishment' and the 'free exercise' clauses of the constitutional language above quoted, regardless of whether the alleged practices are sectarian or non-sectarian. Also, notwithstanding the resolution of the Dade County Board of Public Instruction ² which required the school principal to excuse children from attendance upon request of their parents or guardians, the plaintiffs contend that the exclusion of expert testimony offered for the purpose of showing psychological compulsion and the effects thereof upon the school children was error.

The plaintiffs lean heavily upon the Everson, ³ McCollum, ⁴ McGowan ⁵ and Torcaso ⁶ cases for support and make much of the fact that in those cases, the court, defining the 'establishment' clause, used this language: ⁷

'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 over another. Neither can force or influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.''

We are not impressed with the language quoted as being definitive of the 'establishment' clause. It goes far beyond the purpose and intent of the authors and beyond any reasonable application to the paractical facts of every day life in this country. We feel that the broad language quoted must, in the course of time, be further receded from if weight is to be accorded the true purpose of the First Amendment. The quotation imputed to Jefferson, written by him ten years after the adoption of the First Amendment in a letter to the Danbury Baptists of Connecticut, ⁸ has done little other than cause confusion.

The University of Virginia, wholly controlled by the State of Virginia, by regulation suggested by Mr. Jefferson and adopted by the Visitors of the University provided that the students would be expected to attend religious worship. ⁹ As was pointed out by Mr. Justice Reed in the McCollum case: ¹⁰

'Thus, the 'wall of separation between church and State' that Mr. Jefferson built at the University which he founded did not exclude religious education from that school. The difference between the generality of his statements on the separation of church and state and the specificity of his conclusions on education are considerable. A rule of law should not be drawn from a figure of speech.'

It is our view that Cooley more appropriately and accurately states the proposition as follows: ¹¹

'By establishment of religion is the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the government should be prohibited from recognizing religion * * * where it might be done without drawing any invidious distinctions between different religious beliefs, organizations or sects. The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and to the same extent as formerly.'

If Thomas Jefferson is to be regarded as an authority on the subject, and we concede the point, we believe his opinion, touching the manner in which the Constitution should be construed, expressed in a letter written on June 12, 1823, to William Johnson ¹² is more pertinent to the problem before us than is the one quoted above, as taken from the McCollum case:

'On every question of construction, [let us] carry ourselves back to the time when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.'

Mr. Justice Jackson in the Zorach ¹³ case, referring to Mr. Jefferson's 'wall', had this to say:

'A number of Justices just short of a majority of the majority that promulgates today's passionate dialectics joined in answering them in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, [2 A.L.A.2d 1338]. The distinction attempted between that case and this is trivial, almost to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity. A reading of the Court's opinion in that case along with its opinion in this case will show such difference of overtones and undertones as to make clear that the McCollum ...