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Z, Zorach v. Clauson,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 08 August 2020

Zorach v. Clauson,

343 U.S. 306 (1952), argued 31 Jan.–1 Feb. 1952, decided 28 Apr. 1952 by vote of 6 to 3; Douglas for the Court, Black, Frankfurter, and Jackson in dissent. Zorach v. Clauson was the Supreme Court’s second decision on “released time” plans that allow religious instruction for public school students during the school week. In *Illinois ex rel. McCollum v. Board of Education (1948), a plan, including instruction within school buildings, had been held to violate the *First Amendment’s *Establishment Clause. In Zorach, the Court, stressing the desirability of accommodation to religious needs, approved New York City’s program for religious instruction taking place outside the public schools.

According to Justice William O. *Douglas’s opinion for the Court, the result in McCollum was to be explained by the use of school buildings for religious instruction. New York, by contrast, had not violated separation of church and state. In language often quoted by those who oppose strict separationist approaches to the Establishment Clause, Justice Douglas wrote, “We are a religious people whose institutions presuppose a Supreme Being” (p. 313).

The three justices who had written in favor of the result in McCollum dissented in Zorach. Justice Hugo *Black protested that his opinion for the Court in McCollum had not emphasized the location of the religious instruction. He contended, as did Justices Felix *Frankfurter and Robert *Jackson, that New York, like Illinois, had impermissibly placed the coercive apparatus of the public school laws behind religious instruction, receiving attendance reports for those released and treating as truants students who failed to go to religious instruction.

The Court’s language in Zorach does not comport comfortably with its language in McCollum. Some justices who did not write in McCollum may have thought the school location of the religious instruction mattered more than the opinions reflected, or they may have come to that view on further reflection, perhaps partly in response to criticism of the Court’s “hostility” to *religion. In subsequent cases, Zorach has been used to advocate permissible accommodation to religion; ironically, Douglas later adopted strictly separationist positions and disavowed the result his language eloquently justifies.

See also education.

Kent Greenawalt