Michael B. Anderson v. Melvin R. Laird, Secretary of Defense of the United States of America

466 F.2d 283

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 18, 1972
• Docket: 24617
• Status: Published

Opinions

PER CURIAM:

The separate opinions of Chief Judge Bazelon and Circuit Judge Leventhal concur in the conclusion that the judgment of the District Court, denying appellants’ motions for declaratory and injunctive relief against compulsory chapel attendance at the military academies should be reversed. The case is remanded for the entry of an appropriate order. Circuit Judge MacKinnon dissents.

BAZELON, Chief Judge:

This appeal seeks reversal of the District Court’s decision that the requirement of mandatory chapel attendance for cadets and midshipmen at three federal military academies does not violate the Freedom of Religion Clauses of the First Amendment,¹ 2or the “religious test” clause of Article Six of the United States Constitution.² We reverse, and hold that the regulations at issue are invalid under the Establishment Clause. Although Judge Leventhal joins me in this holding, his reasons are expressed in a separate concurrence. It is the opinion of this writer that the regulations also violate the Free Exercise Clause. Judge MacKinnon, in dissent, would uphold the decision of the District Court, 316 F.Supp. 1081 (D.D.C.1970).

I.

Plaintiffs brought this suit as a class action on behalf of all cadets and midshipmen at the United States Military Academy at West Point, New York, the United States Naval Academy at Annapolis, Maryland, and the United States Air Force Academy at Colorado Springs, Colorado. There is no dispute that the regulations for these three institutions require attendance at Protestant, Catholic or Jewish chapel services on Sundays. The regulations are unequivocal³ *and violations are punished by reprimands, demerits, punishment marching tours, confinement to quarters, and possible expulsion. The Naval and Air Force Academies do allow the midshipmen and cadets to attend services at local churches instead of the academy chapels. No alternative attendance is permitted at West Point because there are no local religious institutions.

The academies permit a cadet or midshipman to change his regular attendance only after he receives permission from the respective chaplains involved and from his parents if he is under twenty-one. The Naval Academy regulations provide that “[rjequests for changes to a different denominational church based on personal whims of the midshipman, rather than a sincere desire to affiliate with the stated denomination, will not be approved.” 4 The academies also formally recognize that some cadets and midshipmen may be excused for conscientious objection to church or chapel attendance.⁵

To test the constitutionality of these regulations under the Establishment Clause, the District Court applied the reasoning of the Supreme Court in School District of Abington Township v. Schempp:

“The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution.” ⁶

The court below held that the regulations did not violate the Establishment Clause because the purpose and effect thereof were secular, not religious.

The District Court reasoned that there is a crucial distinction between “attendance” at religious services and “worship” at those services; that the military academies require only attendance at Sunday services for the secular purpose of providing an “overall training program designed to create effective officers and leaders by preparing them to meet all the exigencies of command”;⁷ and that the primary effect of compulsory attendance is also secular “in that it enables those who will one day hold command positions to gain an awareness and respect for the force religion has on the lives of men so as to react for the benefit of all in combat crises including the giving of spiritual counseling and guidance to those who turn to religion in such situations.” ⁸

The District Court found no violation of the Free Exercise Clause because an “individual chooses which service to attend and he chooses whether to participate and worship or not. And for sincerely held reasons he can be excused from attendance.” ⁹

In making its decision, the court accorded great weight to the opinions and judgments of the military personnel concerned with officer training; noted the unbroken tradition of compulsory chapel attendance at the academies; and relied on the traditional reluctance of courts to interfere in the management of the armed forces.¹⁰

These regulations, however, exceed the constitutionally permitted scope of governmental power. Study of the history of the First Amendment and the Supreme Court decisions interpreting it instructs that the Establishment Clause was written to abolish certain forms of governmental regulation of religion in order to protect absolutely the core values of religious liberty. Attendance at religious exercises is an activity which under the Establishment Clause a government may never compel.

II.

The language of the First Amendment expresses the feelings aroused in early America in reaction to the religious conditions and practices transplanted from the Old World. The background of the First Amendment has been probed in depth in many Supreme Court opinions¹¹ and, in the words of Mr. Justice Rutledge, “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.” ¹²

Compulsory church attendance was one of the primary restrictions on religious freedom which the Framers of our Constitution sought to abolish.¹³ Nonattendance was often treated as an offense which could be severely punished in order to enforce loyalty to an established sect.¹⁴ The “Virginia Bill for Religious Liberty”, originally drafted by Thomas Jefferson, was enacted in Virginia in 1786 in the wake of the defeat of the state’s tax levy for support of established churches. This legislation culminated James Madison’s and Jefferson’s struggle for religious liberty in that state. The Bill specifically provided:

“That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . . ”¹⁵

This statute seeks to define certain categories of governmental involvement with individual religious conduct which must be prohibited. The writers of the First Amendment abandoned this definitional task in favor of drafting broader language to forbid any law “respecting an establishment of religion, or prohibiting the free exercise thereof”. The actions which the Virginia legislation forbade indicate a core value which remains protected by the Establishment Clause — freedom from governmental imposition of religious activity. The Supreme Court has recognized that “the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.” ¹⁶

The struggle in Virginia also led Madison to write his famed “Memorial and Remonstrance Against Religious Assessments.” ¹⁷ This document reflects Madison’s opposition to official relations between church and state in every form and to every degree, whether the relations afforded a preference to a particular sect or simply aided in general the practice of religion. Thus the word religion “connotes the broadest content, determined not by the form or formality of the teaching or where it occurs, but by its essential nature regardless of those details.” ¹⁸ The Government is prohibited from “establishing” all religions as well as just one.¹⁹ And, it is also the legacy of Madison’s writings which teach that certain governmental practices must be abolished completely, no matter how slight an incursion they seem to work on the essential nature of religious liberty.²⁰

This brief account reveals that the men who framed the Religion Clauses of the First Amendment were writing to abolish specific governmental practices which destroyed individual religious liberty and thereby “established” religion. Governmental compulsion of church attendance was one of those practices.

III.

However, the holding in this case does not rest on history alone.²¹ The Supreme Court has applied the Establishment Clause in circumstances unfamiliar to early Americans,²² and has interpreted it to prohibit those governmental actions which pose the same threat to religious liberty as did earlier colonial practices.²³ Thus in Everson v. Board of Education, Mr. Justice Black wrote for the Court:

“The ‘establishment of religion’ clause of the First Amendment means at least this: 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 nor influence a person to go to or to 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.” ²⁴

Our case would seem to be resolved by Everson, since the attendance regulations undoubtedly force or influence church attendance, and non-attendance is admittedly punished. The inquiry cannot begin and end with Everson, however, for while this reading of the Establishment Clause has been re-affirmed several times ²⁵ it has also been difficult to apply. Certain forms of government involvement which recognize, favor and even support religious interests have been sustained under the Establishment Clause in order to avoid conflict with the Free Exercise Clause.

That conflicts are created by an absolute rendering of each Clause is now well-recognized.²⁶ In Walz v. Tax Commission ²⁷ relied on by the District Court in this case,²⁸ Chief Justice Burger pointed out that not only was an absolute separation of church and state impossible, but also the absolute language of both Religion Clauses might have to be ignored in order to accommodate the values protected by each. “The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” ²⁹

The need for accommodation between the two Clauses is evident in Walz. In that case the Court upheld a New York State tax exemption for houses of religious worship challenged as a violation of the Establishment Clause. The Court recognized that the statute did grant an indirect economic benefit to churches ³⁰ and might therefore violate the Establishment Clause, interpreted as it was in Everson as prohibiting laws which aid all religions. On the other hand, deliberate exclusion of religious institutions from the tax exemption³¹ would possibly violate the Free Exercise Clause.³² The Chief Justice, writing for the Court, therefore questioned the breadth of the language in Everson³³ and devised the principle of benevolent neutrality between State and Church to accommodate no-establishment and free exercise values.³⁴

This principle was mistaken by the District Court as authority for its holding that all First Amendment rights must bend when they conflict with military interests.³⁵ The Supreme Court’s interpretations of the Establishment Clause refer to no overriding secular interests which could ever justify a government’s imposition of those religious activities which the Clause was written to abolish. It should be clear from Walz that the actions absolutely proscribed by the Establishment Clause, among which is the compulsion of church attendance, could be constitutionally justified only out of the necessity of preserving the right to free exercise of religion.³⁶ To decline to apply the Clause absolutely in this case is to create a loophole in the scope of its protection which the Supreme Court simply does not admit. This is the crux of the difference of opinion between Judges Leventhal, MacKinnon, and myself.³⁷

Admittedly, when the liberties protected by the two Religion Clauses conflict, there must be “play in the joints” between them. But when abolition of governmental imposition of religious activity presents no conflict with the Free Exercise Clause, the principle of accommodation espoused in Walz has little relevance.

“Nor is it revolutionary to say that First Amendment rights are not absolute . . . And although the Religion Clauses are couched in absolute terms, it is not realistically possible to have absolute or perfect separation and non-involvement. Zorach v. Clauson . . . The very existence of the clauses denotes an involvement of sorts. As the Chief Justice has said, ‘ * * * [T]here is room for play in the joints productive of a benevolent neutrality * * Walz v. Tax Commission. . . . ” Anderon v. Laird, supra note 7, 316 F.Supp. at 1087.

In this case, rather than conflicting, the two Clauses complement each other and dictate the same result.³⁸ Abolition of the attendance requirements enhances rather than violates the free exercise rights of cadets and midshipmen. The Establishment Clause should therefore be read as it was in Everson: “Neither a state nor the Federal Government . can force nor influence a person to go to or to remain away from church against his will.” ³⁹

IV.

The force of this language in Everson has not been diminished by subsequent Supreme Court opinions. Walz in fact re-affirms the teaching of Everson that there are certain forms of governmental involvement with religion which the Establishment Clause prohibits absolutely:

“The general principle dedueible from the First Amendment and all that has been said by the Court is this: .that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” ⁴⁰ (Emphasis added.)

Compulsory attendance requirements fall squarely within this principle. As the history recounted above shows, official adoption of a single creed is not the sole act of establishment. Compulsory attendance at worship and prayer, profession of belief and payment of tithes are necessary concomittants.⁴¹

The Government’s contention that there is a difference between compelling attendance at church and compelling worship or belief ⁴² is completely without merit. Neither appellees, nor the dissenting opinion infra, reveal how a government could possibly compel individual worship or belief other than by compelling certain overt actions — for example, profession of belief in God; recitation of prayers; or mere presence during Bible readings. Attendance during chapel services is indistinguishable from these other overt actions, the compulsion of which has been declared unconstitutional in Torcaso v. Watkins,⁴³ School District of Abington Township v. Schempp,⁴⁴ and Engel v. Vitale.⁴⁵

It is derived from these cases, as well as from history, that freedom from governmental imposition of religious activity is a core value protected by the Establishment Clause,⁴⁶ and that therefore a government may not require an individual to engage in religious practices or be present at religious exercises.⁴⁷ The “purpose and effect” test developed in McGowan v. Maryland ⁴⁸ does not undermine this principle. The test is properly applied when there is some ambiguity about the nature of the activity imposed by the government, and thus some question whether the values protected by the Establishment Clause are actually threatened. In McGowan it was necessary for the Court to inquire extensively into the purpose and effect of Maryland’s Sunday-closing laws.⁴⁹ The Court found that these laws did not impose religious practices on anyone, but allowed individuals to spend the day of rest as they pleased.⁵⁰ Since the laws did not threaten to impose religious activity, the secular purpose and effect outweighed any incidental benefit to those who chose to attend services on Sundays ⁵¹

In later cases, the “purpose and effect” test has been used only to underscore the religious nature of the activity actually imposed by the government. In striking down the Maryland test oath of belief in God in Torcaso v. Watkins, the Court ascertained the purpose and effect of the law from its very language.⁵² Re-affirming its approach in Everson, the Court held that governmental imposition of this form of religious exercise — profession of belief — was absolutely proscribed by the First Amendment.⁵³ In Engel v. Vitale the Court expressed “no doubt that New York’s program of daily classroom invocation of God’s blessings . . . is a religious activity.”⁵⁴ Once it was conceded that the prayer was of a “religious nature”, inquiry into its possible secular purpose or effect was halted ⁵⁵ since governmental imposition of this activity could not be justified.

The court in Schempp in fact noted that Bible readings in the public schools could have a secular purpose.⁵⁶ However, the Court’s factual inquiry into the purpose and effect of the readings began and ended with its recognition that the Bible was an instrument of religion.⁵⁷ The conclusion necessarily followed that “the laws require religious exercises and such exercises are being conducted in direct violation of [the pupils’] rights. . . . ”⁵⁸ Again, no finding of a secular purpose or effect could justify this form of governmental imposition of religion.

Thus the trial court’s findings of fact in the case before us cannot avert the impact of the decisions of the Supreme Court. The military regulations on their face compel presence at religious exercises.⁵⁹ The appellees do not deny that the chapels conduct genuine services of worship, which include Bible readings and weekly invocations of God’s blessings.⁶⁰ This is scarcely the minimal exposure to religion the dissent would have us believe. The trial court should have investigated “purpose and effect” no further since the very language of the regulations reveals that the government is imposing conduct in violation of the letter and the spirit of the Establishment Clause.

It is of no importance that certain cadets and midshipmen may be excused from attendance for conscientiously held beliefs. Such was also true in Engel and Schempp. We rely on the Supreme Court’s holding in Engel:

“The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”⁶¹

We reject also the trial court’s allusion to the notion that the attendance requirements ought not be considered compulsory since the military academies are voluntary institutions. It is certainly true that in this case attendance at the academies is not mandatory.⁶² However, the Supreme Court’s decision in Torcaso v. Watkins turns on its holding that the government may not attach unconstitutional conditions to the award of public employment.⁶³ An individual’s voluntary assumption of an employment or an educational relationship with the government is not a waiver of First Amendment rights.⁶⁴

V.

The court below, however, grounded its decision in a deference to the unique role of the military in our society. In fact, it is difficult to believe that the trial court would have sustained the attendance requirements were any other than select military educational institutions involved — if, for example, the Government had made church attendance compulsory for all welfare recipients; for all elected officials; or even for all of its fighting forces.⁶⁵

In passing, it should also be noted that the court accorded great weight to-the testimony of military officials about the effect of the academy regulations.⁶⁶ This casts serious doubt on the validity of the trial court’s findings, since those upon whom the regulations have an impact — the students and their religious ad-visors' — -are uniquely qualified to testify to their effect.⁶⁷ However, it is not necessary to the disposition of this case to overturn the findings, since any factual inquiry, beyond noting that attendance at religious exercises was compelled, was unnecessary.⁶⁸

In contrast to the holding of this opinion that secular interests may never justify governmental imposition of church attendance, the District Court decided that this absolute rendering of the Establishment Clause could be abandoned since the military’s interest in training a select group of officers was at stake.⁶⁹ This is also the position of the dissenting opinion, infra. However, a careful examination of the cases relied on by the District Court indicates that while an individual’s freedoms may of necessity be abridged upon his entrance into military life, there is no authority for the point that his right to freedom of religion is abolished.⁷⁰

Personal freedoms of conduct and appearance have been accommodated to the military’s perceived need to establish procedures best suited to regulate its day-to-day operations, duty assignments and call-up orders;⁷¹ to determine a reservist’s discharge of his duties;⁷² to regulate physical appearance ;⁷³ and to ascertain “the essential characteristics of fitness for duty.”⁷⁴ This deference to military decisionmaking has been justified by the military’s role, its mandate to prepare for the waging of war, and the necessity of this mandate for our national security. However, deference has inherent limitations which have also been fully recognized in judicial decision.

Thus, although First Amendment rights to free speech and expression may be “less” for a soldier than a civilian, they are by no means lost to him. The Second Circuit has emphasized in Cortright v. Resor that “we are far from holding that under no circumstances could a civilian court interfere with a transfer order or prescribe other relief if that were needed' to prevent abridgement of a soldier’s First Amendment rights.” ⁷⁵

Individual freedom may not be sacrificed to military interests to the point that constitutional rights are abolished. The military regulations in this case violate the core value of the Establishment Clause⁷⁶ and completely abolish its protection. Therefore,”judicial action is mandated now.

VI.

Finally I reach appellants’ claim that the attendance regulations are also unconstitutional under the Free Exercise Clause. It has already been ascertained that the academies have made some provision for excusing cadets and midshipmen for “conscientious objections.”⁷⁷ However, as the Supreme Court has made clear, coercion as well as compulsion is prohibited by the Free Exercise Clause: “The Free Exercise Clause . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion . a violation of the Free Exercise Clause is predicated on coercion. . . . ”⁷⁸

Adopting this interpretation, I cannot agree with the District Court’s bald conclusions that:

“These regulations in no way operate against a cadet in practicing his own religion or in practicing none. The individual chooses which service to attend and he chooses whether to participate and worship or not. And for sincerely held reasons he can be excused from attendance.” ⁷⁹

It bears emphasis that the fact that attendance at the military academies is voluntary does not eliminate the possibility of coercion.⁸⁰ Since there is no difference between requiring attendance and requiring worship,⁸¹ the District Court’s reference to the freedom “to participate or worship or not” is misleading. A single reading of these regulations reveals sufficient coercion to violate the Free Exercise Clause.

First, the failure to attend formal, group worship is punished like any other violation of an academy rule. The most devout believer, who may wish just once or always to worship alone is plainly coerced to attend services. The Supreme Court has recognized in Engel and Sehempp that peer group pressure to conform to established practices is a forceful form of coercion.⁸² Thirdly, practitioners of sectarian beliefs may attend only “approved” alternatives to the academy chapels. For certain minorities, and all cadets at West Point, there are no alternatives available. Parental and chaplain approval is required for a change in attendance. And finally, visitation of a variety of religious services, thoroughly consistent with the search for or exercise of religious beliefs, is absolutely prohibited.

These manifest restraints on the free exercise of religion can be saved from uneonstitutionality only if they were enacted to serve paramount and compelling state interests; and if there are no alternative means to achieve the government’s goals. This dual test of constitutional validity was established by the Supreme Court in Sherbert v. Verner⁸³ and has been applied in this Circuit.⁸⁴ The fact that military interests are involved in this case does not make the test less rigorous.

The military’s interest espoused in this ease has already been contrasted to “paramount and compelling” concerns which have justified infringements of personal freedoms in the past.⁸⁵ This case does not involve programs vital to our immediate national security, or even to military operational or disciplinary procedures. Nor does it appear that the ruling will have any detrimental impact on the academies’ training programs. The appellees have made no showing that chapel attendance requirements are the best or the only means to impart to officers some familiarity with religion and its effects on our soldiers.

While some weight must be accorded the military judgment that familiarity with religion is necessary for the all-around officer, it is for this court to assess that “decision in constitutional terms. In the words of Mr. Justice Jackson, we act not by virtue of a superior competence but by virtue of our commission to protect basic constitutional rights.⁸⁶ Absent any attempt by appellees to devise an alternative program other than compulsory attendance at the regular chapel services of a single denomination, I am constrained to declare these regulations invalid under the Free Exercise Clause.

1 . The First Amendment to the United States Constitution provides in part that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

2 . Article Six of the Constitution reads in pertinent part: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

3 . The West Point regulation provides:

“Attendance at Chapel is part of a cadet’s training; no cadet is exempt. Each cadet must attend either the Cadet Chapel, Catholic Chapel or Jewish Chapel service each Sunday, according to announced schedules.” Regulations for The United States Cadet Corps of the United States Military Academy, Chapter 8, Section IV, paragraph 819.

The Naval Academy regulation provides:

“1. The basic requirements concerning religious matters at the Naval Academy are: .

(a) All midshipmen will attend church or chapel services on Sunday mornings but are required to attend at no other times.”

Part II, Chapter 15, § 1501 of the United States Naval Academy Regulations.

The Air Force Academy regulation provides :

“Attendance at an established church service is mandatory for those Second, Third and Fourth Classmen present for duty in the Cadet Area.” Air Force Cadet Regulation No. 265-1.

4 . Part II, Chapter 15, § 1502.1.a of the United States Naval Academy Regulations.

5 . This policy was formulated at a meeting of the Academy Superintendents in 1969:

“It is understood that intelligent provisions must be made for bona fide cases where attendance would be in conflict with sincerely held convictions of individual cadets or midshipmen.”

The Eleventh Conference of Superintendents of the Academies of the Armed Forces, Record of Proceedings, April 18, 1969 at 32.

The effect of this policy is unclear, since only three midshipmen have been excused from attendance by the Naval Academy in the past forty years, and no cadet at West Point has ever been excused. However, neither the existence nor the viability of this policy is dispositive in view of the Supreme Court’s interpretation of the Establishment Clause. See p. 293 infra.

6 . 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963).

7 . Anderson v. Laird, 316 F.Supp. 1081, 1090 (D.D.C.1970).

8 . Ibid. The court found no violation of the “religious test” clause because of the “close connection between the establishment prohibition and the test oath prohibition. The court having determined that there is no violation of the Establishment Clause ... it necessarily follows that there can be no violation of the test oath prohibition.” Id. at 1093.

9 . Id. at 1091.

10 . Citing Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953) ; Nixon v. Secretary of Navy, 422 F.2d 934 (2d Cir. 1970) ; Raderman v. Kaine, 411 F.2d 1102 (2d. Cir. 1969) ; Byrne v. Resor, 412 F.2d 774 (3rd Cir. 1969) ; Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) ; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371 (2d Cir. 1968), cert. denied 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969) and others.

11 . Foremost among these are Mr. Justice Black’s Opinion of the Court and Mr. Justice Rutledge’s dissent in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed.2d 711 (1947). The two opinions agree that the struggle for religious liberty in Virginia, led by James Madison and Thomas Jefferson, culminated in the drafting of the Religion Clauses of the First Amendment. See also Engel v. Vitale, 370 U.S. 421, 431-435, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).

12 . Everson v. Board of Education, supra note 11, 330 U.S. at 33, 67 S.Ct. at 520.

13 . The views of Roger Williams, progenitor of the theory of separation of church and state, are succinct on this point:

“There goes many a ship to sea, with many hundred souls in one ship, whose weal and woe is common, and is a true picture of a commonwealth, or human combination, or society. It hath fallen out sometimes, that both Papists and Protestants, Jews and Turks, may be embarked in one ship; upon which supposal, I affirm that all the liberty of conscience I ever pleaded for, turns upon these two hinges, that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship’s prayers or worship, nor compelled from their own particular prayers or worship, if they practice any.” 1 Stokes, Church and State in the United States 197 (1950). Also quoted in School District of Abington Township v. Schempp, supra note 6, 374 U.S. at 214, n. 6, 83 S.Ct. at 1567.

For a thorough discussion of the efforts to dis-establish religion during and after the Revolution, see S. Cobb, The Rise of Religious Liberty in America 482-509 (1968).

14 . In Virginia, the Governor Sir Thomas Dale ordained in 1612 that “non-attendance on religious services entailed a penalty, for the first offense, of the stoppage of allowance; for the second, whipping; for the third, the galley for six months.” The first Virginia Assembly whose acts have been recorded provided for absence from Church for one Sunday the fine of five pounds of Tobacco in 1623. And in 1631, absentees from Church were to be fined one shilling for each offence. See Cobb, supra note 13, at 78, 80, 82-83. What Cobb refers to as “a desire for old-time persecution” occasionally reared its head in eighteenth century Virginia. In 1722, the Grand Jury returned thirteen presentments for absenteeism. Id. at 99.

In Massachusetts, the “law of domicile . . . required all people to live within easy distance of the meeting-house so that all could attend worship.” Id. at 176. Furthermore, non-attendance at services was punished by a fine of five shillings in 1646. Id. at 177.

15 . 12 Hening, Statutes of Virginia (1823) 84, also quoted in Everson v. Board of Education, supra note 11, 330 U.S. at 13, 67 S.Ct. at 510.

16 . Everson v. Board of Education, supra note 11, 330 U.S. at 13, 67 S.Ct. at 510, citing Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878) ; Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871) ; and Davis v. Beason. 133 U.S. 333, 342, 10 S.Ct. 299, 33 L.Ed. 637 (1890). And see McGowan v. Maryland, 366 U.S. 420, 437, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

17 . II Writings of James Madison 183, reproduced in full as the Appendix to Mr. Justice Rutledge’s dissent in Everson v. Board of Education, supra note 11, 330 U.S. at 63, 67 S.Ct. at 535.

18 . Everson v. Board of Education, supra note 11, 330 U.S. at 33, 67 S.Ct. at 520 (Rutledge, J., dissenting).

19 . The Supreme Court “has rejected unequivocally the contention that the Establishment Clause forbids only govermental preference of one religion over another.” School District of Abington Township v. Schempp, supra note 6, 374 U.S. at 216, 83 S.Ct. at 1568. See also Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210-211, 68 S.Ct. 461, 92 L.Ed. 469 (1948) and McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 6 L.Ed. 2d 393 (1961).

20 . J. Madison, “Memorial and Remonstrance”, supra note 17, quoted in Everson v. Board of Education, supra note 11, 330 U.S. at 65-66, 67 S.Ct. at 536:

“[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsover?”

21 . That the Framers intended to abolish a specific practice might not be dispositive today, at least in the opinion of Mr. Justice Brennan. In Schempp, he warned against a “too literal quest for the advice of the Founding Fathers” because of the ambiguity of the extant history, but also because the changing circumstances of American life call for a broad application of the principles established in colonial times. 374 U.S. at 237-242, 83 S.Ct. at 1579. He noted that the Fathers were concerned with “far more flagrant intrusions of government into the realm of religion . . . ” than we might see today. Id. at 237, 83 S.Ct. at 1579. The relevance of history to our opinion in this case is that compulsory attendance laws were among the very “flagrant intrusions” which the Establishment Clause was written to abolish.

22 . The Framers “did not limit the constitutional proscription to any particular, dated form of state-supported theological venture.” McGowan v. Maryland, 366 U.S. 420, 465, 81 S.Ct. 1101, 1156 (1961) (Opinion of Frankfurter, J.).

23 . The Court has framed its task as translating the “majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century. . . . ” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943). A broad interpretation of the Clause is justified by the general language of the Amendment, since, in its final form, the Amendment “did not simply bar a congressional enactment establishing a church. . . . [The Court] has found that the First and Fourteenth Amendments afford protection against religious establishment far more extensive than merely to forbid a national or state church.” McGowan v. Maryland, 366 U.S. 420, 442, 81 S.Ct. 1101, 1113 (1961).

Mr. Justice Brennan has succinctly stated that the proper inquiry “is whether the practices here challenged threaten those consequences which the Framers deeply feared. . . . ” School District of Abington Township v. Schempp, supra note 6, 374 U.S. at 236, 83 S.Ct. at 1578.

24 . 330 U.S. at 15-16, 67 S.Ct. at 511.

25 . See Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210-211, 68 S.Ct. 461, 92 L.Ed. 469 (1948) ; McGowan v. Maryland, 366 U.S. 420, 443, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) ; and Torcaso v. Watkins, 367 U.S. 488, 492-493, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961).

26 . Scholarly comment on this conflict is extensive. See, e. g., Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692 (1968) ; Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1 (1961) ; Gianella, Religious Liberty, Nonestablishment, and Doctrinal Development, 80 Harv.L.Rev. 1381 (1967) ; and Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1313 (1970).

27 . 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).

28 . Anderson v. Laird, supra note 7, 316 F.Supp. at 1087.

29 . Walz v. Tax Commission, supra note 27, 397 U.S. at 669, 90 S.Ct. at 1411.

30 . Id. at 674, 90 S.Ct. 1409.

31 . The exemption extended to other nonprofit charitable property.

32 . The opinion in Walz refers to other municipal benefits which could not arguably be withdrawn from religious institutions under the Free Exercise Clause :

“Separation in this context cannot mean absence of all contact; the complexities of modern life inevitably produce some contact and the fire and police protection received by houses of religious worship are no more than incidental benefits accorded all persons or institutions within a State’s boundaries, along with many other exempt organizations.” Id. at 676, 90 S.Ct. at 1415.

For other difficulties inherent in withdrawing tax exemptions from religious institutions see Bittker, Churches, Taxes and the Constitution, 78 Yale L.J. 1285 (1969). Walz also draws its lesson that the Establishment Clause must bend to accommodate free exercise rights from four other Supreme Court decisions. In Everson itself, the use of public funds to reimburse parents of parochial school children, admittedly an aid to their religious education, was upheld as a neutral form of governmental action which had to be extended to users of religious schools —analogous to governmental police and fire protection. 330 U.S. at 16-18, 67 S. Ct. 504. In Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), a released time program for religious instruction outside New York’s public schools was upheld as a neutral “accommodation” to “the religious needs of the people” despite the majority’s recognition that the program in fact encouraged religious education. 343 U.S. at 313-315, 72 S.Ct. at 684-685. And in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968) the Court upheld the New York State subsidy of textbooks loaned to parochial school children relying heavily on the analysis of Everson. Finally, in Sherbert v. Verner, 374 U.S. 398, S3 S.Ct. 1790, 10 L.Ed.2d 965 (1963), deference to the Free Exercise Clause mandated the Court’s striking down a state statute which provided no exceptions for practitioners of special religious sects. See the discussion of these cases in Walz, 397 U.S. at 669-672, 90 S. Ct. 1409.

33 . “The hazards of placing too much weight on a few words or phrases of the Court is abundantly illustrated within the pages of the Court’s opinion in Everson.’’ Walz v. Tax Commission, supra note 27, 397 U.S. at 670, 90 S.Ct. at 1412. The Chief Justice noted that the Court had stated in Everson that the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another” but had no difficulty in upholding a taxing statute which undoubtedly helped children get to church schools. Ibid.

34 . Id. at 669, 90 S.Ct. 1409.

35 . The District Court prefaced its analysis of the regulations at issue thus:

36 . Thus, accommodation of the Establishment Clause to permit maintenance of religious personnel and institutions within the military is necessitated not by military interests, but by the mandate of the Free Exercise Clause that soldiers be given the opportunity to worship.

37 . The dissenting and concurring opinions disagree as to the sufficiency of the academies’ showing that the regulations are both necessary, and secular in purpose and effect. But neither cites authority for their underlying premise — that military or any other types of interests can “justify” in constitutional terms what is otherwise a clear violation of the Establishment Clause. This type of balancing analysis is confined to judicial interpretation of the Free Exercise Clause, see, e. g., Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), in cases where bizarre or disruptive religious practices have been proscribed. It is the history of, and the Supreme Court’s applications of, the Establishment Clause which make necessary the holding that no possible showing could validate enforced church attendance. See Torcaso v. Watkins, 367 U.S. 488, 494, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) ; Engel v. Vitale, 370 U.S. 421, 425, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).

38 . See Part VI. of this opinion.

39 . 330 U.S. at 15, 67 S.Ct. at 511.

40 . 397 U.S. at 669, 90 S.Ct. at 1411-1412.

41 . See generally, Cobb, supra note 13, at 74 — 301.

42 . The District Court accepted this distinction. Anderson v. Laird, supra note 7, 316 F.Supp. at 1091. Had it not, we can only speculate as to whether the court would have reached the same result under the “purpose and effect” test or would have recognized that compulsory worship is absolutely prohibited by the Establishment Clause.

43 . 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961).

44 . 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).

45 . 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).

46 . “Almost every Supreme Court Justice who has written an opinion involving the establishment clause has identified no imposition as an establishment value.” Schwarz, supra note 26 at 721. See Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210-211, 68 S.Ct. 461, 92 L.Ed. 469 (1948) ; Engel v. Vitale, supra note 45, 370 U.S. at 431, 82 S.Ct. 1261; Everson v. Board of Education, supra note 11, 330 U.S. at 26, 67 S.Ct. 504 (dissenting opinion of Jackson, J.) ; and Zoraeh v. Clauson, 343 U.S. 306, 311, 72 S.Ct. 679, 96 L.Ed. 954 (1952).

47 . Passing references by the Supreme Court to the fact that the government may not compel church attendance are numerous. “[The government] may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction.” Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952) ; “[The government] cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character.” Everson v. Board of Education, supra note 11, 330 U.S. at 26, 67 S. Ct. at 516 (dissenting opinion of Jackson, J.) See also United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 (1947) and Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952).

48 . 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Although the Court did not define the test succinctly until Schempp, the opinions in McGowan analyze extensively the purpose and effect of the laws at issue. See the closing paragraph of the Opinion of the Court, 366 U.S. at 453, 81 S.Ct. 1101.

49 . Chief Justice Warren wrote:

“There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces. But what we must decide is whether present Sunday legislation, having undergone extensive changes from the earliest forms, still retains its religious character.” Id. at 431, 81 S.Ct. at 1108.

50 . Id. at 449, 81 S.Ct. 1101.

51 . That the “purpose and effect” test is really a balancing test when the core values of the Establishment Clause are not at stake is not stated explicitly by the Supreme Court but is discussed by commentators. See Schwarz supra note 26, at 702-704.

52 . “There is, and can be, no dispute about the purpose or effect of the Maryland Declaration of Rights requirement before us— it sets up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from holding a public ‘office . . . ’ Torcaso v. Watkins, supra note 43, 367 U.S. at 489-490, 81 S.Ct. at 1681.

53 . Id. at 495, 81 S.Ct. 1680.

54 . 370 U.S. at 424, 82 S.Ct. at 1264.

55 . The Court ignored the attempt by the Board of Regents of New York to “distinguish this prayer because it is based on our spiritual heritage” and thus inculcates more than a religious lesson. Id. at 425, 82 S.Ct. at 1264.

56 . The States contended that among the secular purposes of the Bible readings “are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature.” School District of Abington Township v. Schempp, supra note 6, 374 U.S. at 223, 83 S.Ct. at 1572. The Court stated: “[E]ven if its purpose is not strictly religious, ...” Id. at 224, 83 S.Ct. at 1572, it was impermissible because sought to be accomplished through readings from the Bible.

57 . Id. at 224, 83 S.Ct. 1572.

58 . Ibid.

59 . See note 3, supra.

60 . See, e. g., the worship programs and sermon attached on pages 134-135, and ISO-153 of the Appendix.

61 . 370 U.S. at 430-431, 82 S.Ct. at 1267.

62 . Unlike Schempp, Engel v. Vitale and West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L. Ed. 1628 (1943) in which attendance at the public schools was mandatory.

63 . “The fact, however, that a person is not compelled to hold public office cannot possibly be an excuse for barring him from office by state-imposed criteria forbidden by the Constitution. This was settled by our holding in Wieman v. Updegraff, 344 U.S. 183 [, 73 S.Ct. 215, 219, 97 L.Ed. 216]. We there pointed out that whether or not ‘an abstract right to public employment exists,’ Congress could not pass a law providing ‘. . . that no federal employee shall attend Mass or take any active part in missionary work.’ ” (footnote omitted). 367 U.S. at 495-496, 81 S.Ct. at 1684.

64 . Hamilton v. Regents of the University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343 (1934) is not to the contrary. See note 80 infra.

65 . Such possible extensions of the rationale of the District Court’s opinion are not to be glossed over. It is not far-fetched to imagine that an imposing argument could be martialed for the proposition that all elected officials should attend church since it is important for them to understand the spiritual forces which motivate and effect a substantial portion of the population in this country, just as such an understanding may be important for our military leaders.

66 . The court below states that it was not “downgrading” the testimony offered by plaintiffs. 316 F.Supp. at 1090. However, the following statement does establish that the District Court relied on military testimony as expert testimony in making its findings of fact:

“[T]he testimony adduced by the plaintiffs was presented by persons who are not now and never have been directly concerned with the training of our military leaders. As moralists the Court must accord them due deference, but in matters military the Court feels constrained to look to the military experts.” Ibid.

67 . The “effect” of a regulation is a separate question from the “necessity” for it. Evidence as to the effect of the attendance requirements from military officials should have been weighed only equally against evidence from other relevant sources' — -for example, chaplains who have conducted chapel services. Furthermore, since the court below emphasized that the purpose of a military regulation may change over the centuries of its existence, it should have been equally open to the possibility that the effect may also change and that students presently enrolled in the academies are in the best position to analyze the current effect.

68 . See Part IV. of this opinion.

69 . See note 35, supra. The District Court also stated:

“As a guiding principle it can be said that the amount of judicial interference with the military should be limited; the amount of deference given the military in matters of discipline and training should be wide.” 316 F.Supp. at 1085-1086.

70 . See, e. g., Orloff v. Willoughby, supra note 10, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842; Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971) ; Raderman v. Kaine, supra note 10, 411 F.2d 1102, and cases cited in note 10, supra. The dissent candidly admits at pp. 308-309, infra, that decisions holding that constitutional rights do not apply fully to the military are limited to questions of criminal procedure and military discipline. Although free exercise rights may have to bend to military exigencies, I would again emphasize that this is not authority for the military to impose religious exercise on its members.

71 . Orloff v. Willoughby, supra note 10, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842; Nixon v. Secretary of the Navy, supra note 10, 422 F.2d 934; United States ex rel. Schonbrun v. Commanding Officer, supra note 10, 403 F.2d 371; Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967) ; Luftig v. McNamara, 126 U.S.App.D.C. 4, 373 F.2d 664 cert. denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332 (1967).

72 . Fox v. Brown, 402 F.2d 837 (2d Cir. 1968), cert. denied, 394 U.S. 938, 89 S.Ct. 1219, 22 L.Ed.2d 471 (1969).

73 . Raderman v. Kaine, supra note 10, 411 F.2d 1102; Smith v. Resor, supra note 10, 406 F.2d 141; Byrne v. Resor, supra note 10, 412 F.2d 774.

74 . Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967).

75 . Supra note 70, 447 F.2d at 254-255.

76 . See page 288 supra.

77 . See note 5, supra.

78 . School District of Abington Township v. Schempp, supra note 6, 374 U.S. at 222-223, 83 S.Ct. at 1572.

79 . Anderson v. Laird, supra note 7, 316 F.Supp. at 1091.

80 . In Hamilton v. Regents of the University of California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343 (1934) the Supreme Court upheld the constitutionality of the state university’s requirement that all students must participate in military training against attack under the Free Exercise Clause. The Court reasoned that since the students were not compelled to attend the university, they were not compelled to violate their religious scruples. 293 U.S. at 262, 55 S.Ct. 197. The continued validity of this reasoning is doubtful in light of recent Supreme Court decisions, e. g., Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ; Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) ; Torcaso v. Watkins, supra note 43, 367 U.S. 488, 81 S. Ct. 1680, 6 L.Ed.2d 982; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

Moreover, Mr. Justice Cardozo noted in his concurrence in Hamilton, in which he was joined by Justices Brandéis and Stone:

“Instruction in military science is not instruction in the practice or tenets of a religion. Neither directly nor indirectly is government establishing a state religion when it insists upon such training.” 293 U.S. at 266, 55 S.Ct. at 206.

Thus Hamilton is distinguished from this case in which the government compels attendance at admittedly religious exercises.

81 . See page 288, supra.

82 . 370 U.S. at 431, 82 S.Ct. 1261 and 374 U.S. at 225, 83 S.Ct. 1560.

83 . 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The Free Exercise Clause does not afford absolute protection to overt acts prompted by religious belief if the conduct poses “some substantial threat to public safety, peace or order.” Id. at 403, 83 S.Ct. at 1793, citing Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, and Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 among others. Any burden on the free exercise of religion may be justified only “by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. . . .’ NAAOP v. Button, 371 U.S. 415, 438 [, 83 S.Ct. 328, 341, 9 L.Ed.2d 405].” Ibid. The Court also stated that even if in STierbert there was a threat to some valid state interest, “it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would [be effective] without infringing First Amendment rights. Id. 374 U.S. at 407, 83 S.Ct. at 1796.

84 . Barnett v. Rodgers, 133 U.S.App.D.C. 296, 410 F.2d 995 (1969).

85 . See page 294 supra.

86 . “[W]e act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 640, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (1943).