Zorach v. Clauson, 343 U.S. 306; 72 S. Ct. 679; 96 L. Ed. 954 (1952)

Zorach v. Clauson, 343 U.S. 306; 72 S. Ct. 679; 96 L. Ed. 954 (1952)

Facts—New York City arranged a program permitting its public schools to release students during the school day so that they might go to religious centers for religious instruction or devotional exercises. A student was released on the written request of his parents. The churches made a weekly list of the children released from the public school, but who had not reported for religious instruction. This “released time” program involved neither the use of the public school classrooms nor the expenditure of any public funds. All costs were paid by the religious organizations.

Question—Does the New York City statute permitting release time violate the First Amendment, which, by reason of the Fourteenth Amendment, prohibits the states from establishing religion or prohibiting its free exercise?


ReasonsJ. Douglas (6–3). There was no issue concerned here with the prohibition of the “free exercise” of religion. No one was forced to attend the religious instruction, nor was the religious training brought into the class- rooms of the public schools.

The First Amendment does reflect the philosophy of separation of church and state, but does not say that in every and all respects there must be separation. It rather defines ways in which there shall be no dependency, one on the other. This is only common sense.

The concept of separation of church and state would have to be pressed to extreme views to condemn the present law on a constitutional basis. We are a religious people with a belief in a Supreme Being. Our government shows no partiality to any one group, but lets each flourish. The state follows the best of our traditions when it schedules its events so as to encourage religious instruction. The government may not finance religious instruction. The government may not finance religious groups, undertake religious instruction, blend secular and sectarian education, nor use secular institutions to force some religion on any person. However, there is no constitutional requirement for government to be hostile to religion. The McCollum case cannot be expanded to cover this case, unless separation of church and state means that public institutions cannot accommodate the religious needs of the people. “We cannot read into the Bill of Rights such a philosophy of hostility to religion.”

J. Black, J. Frankfurter, and J. Jackson all authored dissents questioning the majority’s distinction between this case and McCollum and arguing that the state was using its power of coercion to advance religion.

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