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Zorach V. Clauson: The Impact of a Supreme Court Decision*

  • Frank J. Sorauf (a1)


It has become a commonplace that the Constitution is what the Supreme Court says it is. Scholars of American constitutional law have, therefore, focused their studies largely on the Court's opinions as indices of the Constitution's current meaning. But however well established may be the Court's role as the expounder of the constitutional document, the impact of a decision will depend on many individuals and circumstances far beyond the confines of the Court. This paper will examine the effects of the decision in Zorach v. Clauson on public policy in the seven years since its announcement. It will attempt to follow the repercussions of one Supreme Court decision through the entire political process within one area of political conflict—in this case the conflict over church-state relationships.



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1 343 U. S. 306 (1952).

2 For somewhat similar studies see Murphy, Walter, “Civil Liberties and the Japanese American Cases: A Study in the Uses of Stare Dedsis,” Western Political Quarterly, Vol. 11 (March, 1958), pp. 312; Peltason, Jack W., Federal Courts in the Political Process (Garden City, N. Y., 1955), ch. 6; and Patric, Gordon, “The Impact of a Court Decision: Aftermath of the McCollum Case,” Journal of Public Law, Vol. 6 (Pall 1957), pp. 455464.

3 For the best brief but authoritative survey of released time in America, see Shaver, Erwin L., The Weekday Church School (Boston, 1956). Dr. Shaver served for many years as the Executive Director of Weekday Religious Education of the National Council of Churches.

4 McCollum v. Board of Education, 333 U. S. 203 (1948).

5 Ibid., p. 212.

6 Everson v. Board of Education, 330 U. S. 1 (1947).

7 Cited note 1 above, p. 312.

8 Ibid., p. 314.

10 Ibid., pp. 324–325.

11 Ibid., p. 325.

12 Shaver, Erwin L., “Weekday Religious Education Secures Its Charter and Faces a Challenge,” Religious Education, Vol. 48 (January–Feburary, 1953), p. 43.

13 Howlett, Walter, A Review and Challenge of Sixteen Years (published by the Greater New York Co-ordinating Committee on Released Time, no date), p. 6.

14 Hartnett, Robert C., “Religious Education and the Constitution,” America, Vol. 87 (May 24, 1952), p. 225.

15 Shaver, , The Weekday Church School, p. 60.

16 Hartnett, op. cit., p. 225.

17 Johnson, F. Ernest, “Religion and Education,” Progressive Education, Vol. 33 (September, 1956), p. 146.

18 Shaver, op. cit. note 15 above, p. 31.

19 Following the Best of Our Traditions,” National Council Outlook, Vol. 2 (June, 1952), p. 20.

20 Introducing the Weekday Church School (published by the Division of Christian Education of the National Council of Churches, no date), p. 15.

21 Mulford, Herbert B., “A Pattern for Eeligion in Public Education,” Religious Education, Vol. 49 (September–October, 1954), p. 333.

22 Drinan, Robert F., “The Supreme Court and Religion,” The Commonweal, Vol. 56 (September 12, 1952), p. 554.

23 Shaver, op. cit. note 12 above, p. 40.

24 The Court Concurs,” Christian Century, Vol. 69 (May 14, 1952), p. 582.

25 Church and State Newsletter, Vol. 5 (May, 1952), p. 2. This account gives 21 lines of type to the majority opinion and 76 to the dissenters.

26 The Relation between Religion and Education,” Progressive Education, Vol. 33 (September, 1956), p. 142.

27 Garber, Lee O., “Confusing Decisions on Released Time,” Nation's Schools, Vol. 50 (August, 1952), p. 72.

28 Schultz, Henry E., Religious Education and the Public Schools (published by the Anti Defamation League, New York, 1955), p. 5.

29 “State Support of Church Schools” (mimeographed excerpts from the reports of the Board for Parish Education of the Lutheran Church—Missouri Synod), p. 19, and Shaver, op. cit. note 12 above, p. 41.

30 Ibid.; Erwin L. Shaver letter to the author, March 14, 1958; various mimeographed press releases of the Confraternity of Christian Doctrine of the National Catholic Welfare Conference; and Tuttle, Charles H., “No Poor Relation in the House of the State,” National Council Outlook, Vol. 2 (June, 1952), p. 4.

31 Shaver letter to the author, March 14, 1958.

32 Gilbert, W. Kent, Suggested Procedures for an Evaluation of the Weekday Church School Series of the United Lutheran Church in America (Columbia U.: D.Ed, thesis, 1955).

33 Church and State Newsletter, Vol. 5 (June, 1952), p. 3.

34 October 14, 1952, p. 35.

35 See: Research Division of the National Educational Association, “The State and Sectarian Education,” Research Bulletin, Vol. 34 (Dec., 1956) for the best summary of state legislation. It cites 14 states with permissive legislation, but the New Mexico listing turns out to involve a favorable ruling by the attorney general on the basis of ordinary school legislation. The 13 are: California, Indiana, Iowa, Kentucky, Maine, Massachusetts, Minnesota, New York, North Dakota, Oregon, Pennsylvania, South Dakota, and West Virginia.

36 Opinion of August 18, 1953, Thirtieth Biennial Report of the Iowa Attorney General (1954), pp. 7376.

37 Opinion No. 24 of June 1, 1956, Opinions of the Attorney General of Indiana (1956), pp. 105114.

38 Opinion No. 14 of July, 1954, Biennial Report of the Attorney General of Vermont (19541956), pp. 9598.

39 Opinion No. 2890 of December 2, 1954, Biennial Report and Opinions of the Attorney General of Oregon, (1954–1956).

40 Wilkins, Ruth W., “Constitutionality of Utah Released Time Program,” Utah Law Review, Vol. 3 (Spring, 1953), p. 339.

41 Shaver, op. cit. note 12 above.

42 Bolmeier, E. C., “Legality and Propriety of Religious Instruction in the Public Schools,” Educational Forum, Vol. 20 (May, 1956), p. 480.

43 Flynn, Luther, A Study of Moral, Spiritual, and Religious Values in the Public Schools of Virginia (U. of Virginia: D.Ed, thesis, 1956).

44 Flachmeier, William A., Religious Education and the Public Schools of Texas (U. of Texas: Ph.D. thesis, 1955).

45 Shaver, Erwin L., “A Look at Weekday Church Schools,” Religious Education, Vol. 51 (Jan.-Feb., 1956), pp. 1839.

46 New York Times, February 20, 1955, p. 88. The program then reached 100 of 280 high school pupils in Bangor, Michigan.

47 Church and State Newsletter and the releases and memos of the Confraternity of Christian Doctrine, though obviously parties to the dispute, repeatedly carry stories of such local practices. See also Flachmeier, op. cit., and Early, Jack J., Religious Practices in the Public Schools in Selected Communities in Kentucky (U. of Kentucky: D.Ed, thesis, 1956).

48 McKibben, Frank M., Report and Interpretation of the First National Conference on Weekday Religious Education (National Council of Churches, no date), p. 12.

49 Shaver, , “A New Day Dawns for Weekday Religious Education,”p. 8. For his other warnings, see The Weekday Church School; Introducing the Weekday Church School (National Council of Churches, no date); and Remember the Weekday to Teach Thereon (National Council of Churches, no date).

50 A total of 59 of 67 answered the questionnaire, although only 60 responded to this question. A total of 33 superintendents reported they have released time programs in their counties, and 26 reported they do not. Of the 33 counties with released time, at least five still use school rooms, and two use community centers. The respondents making “correct” judgments on the issues of constitutionality are evenly divided between counties with released time programs and those without.

51 “Following the Best of Our Traditions,” National Council Outlook (June, 1952), p. 20.

52 Mentioned in Costanzo, Joseph F., “Religion in Public School Education,” Thought, Vol. 31 (Summer, 1956), p. 218.

53 Johnson, F. Ernest (ed.), American Education and Religion: The Problem of Religion in the Schools (New York, 1952), p. 190.

54 Louisell, David W., “Constitutional Limitations and Supports for Dealing with Religion in Public Higher Education,” Religious Education, Vol. 50 (Sept.-Oct., 1955), p. 289.

55 Costanzo, op. cit., pp. 237–238.

56 Commonwealth v. Renfrew, 126 N.E. 2d 109 (1955).

57 Rawlings v. Butler, 290 S.W. 2d 801 (1956).

58 Carden v. Bland, 288 S.W. 2d 718 (1956), p. 722.1 should also note that in one state case the Zorach decision was used to deny an expansion of church-state cooperation. The New Jersey Supreme Court held the distribution of Gideon Bibles in the public schools to be preferential aid for some religious sects. See Tudor v. Board of Education, 100 A. 2d 857 (1953). This is, however, the only instance of the restrictive use of the precedent in state or federal courts of which I am aware.

59 Elbin, Paul N., “Religion in State Schools,” Christian Century, Vol. 69 (September 17, 1952), p. 1061.

60 F. Ernest Johnson (ed.), op. cit., p. 195.

61 Lundberg v. County of Alameda, 298 P. 2d 1 (1956), p. 7.

62 343 U. S. 306, p. 314.

63 Commonwealth v. Randall, 133 A. 2d 276 (1957).

64 Petition of Plywacki, 107 F. Supp. 593 (1952), p. 593.

65 Commercial Pictures v. Board of Regents, 113 N.E. 2d 502 (1953), p. 511.

66 Lewis v. Allen, 159 N.Y.S. 2d 807 (1957).

67 New York Times, June 16, 1952, p. 13.

68 Shaver, Erwin L., “A New Day Dawns for Weekday Religious Education,” International Journal of Religious Education, Vol. 28 (July-August, 1952), p. 8.

69 Shaver, op. cit. note 12 above, p. 39.

70 Msgr. John S. Middleton, Secretary of Education for the New York Archdiocese, in New York Times, April 29, 1952, p. 23.

71 Almond v. Day, 89 S.E. 2d 851 (1955), p. 858.

72 Rawlings v. Butler, 290 S.W. 2d 801 (1956), pp. 812–813.

73 Opinion No. 316 of February 19, 1954, Reports and Official Opinions of Attorney General of Nevada (19521954), pp. 232235.

74 Opinion No. 204 of March 12, 1955, Illinois Attorney General's Opinions for 1955, pp. 84–86.

* I am indebted for assistance in this project to both the Council on Research and the Social Science Research Center of the Pennsylvania State University.

Zorach V. Clauson: The Impact of a Supreme Court Decision*

  • Frank J. Sorauf (a1)


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