State ex rel. Finger v. Weedman

BURCH, J.

Defendants compose the school board of independent schdol district No. 8, of Meade county, commonly known as the Faith school district. In February, 1925, they ordered that the Bible be read or the Lord’s Prayer ‘be repeated, without sectarian comment, in all of the schoolrooms wherein public school was being conducted. Pursuant to that order, passages of the King James version of the Bible were selected and read, or the Lord’s Prayer was repeated, daily by the teachers in the several rooms, as án opening exercise, but no sectarian comment 'was made. Some 12 or 15 children of the Roman Catholic faith refused to attend the opening exercises, where such version of the Bible was read or such prayer repeated, and as a consequence thereof were expelled from the school-and were not allowed to return,' except upon condition that each, before returning, should sign a written apology and ^greément as follows :

“Board of Education, Faith Independent School District No. 8: After being expelled' from school on the 6th day of March, 1925, for disobedience to school regulations, I regret any action of disobedience and agree that, if I be admitted to the school again, I will comply willingly and cheerfully with all school regulations, including respectful attention to any scripture reading or other opening exercises that may be given. The reasons for such disobedience on the above date are that-.

“[Signed]--.”]

This action was brought upon the relation of the father of one of such children in the circuit court of Meade county to compel the school board by mandamus to readmit his said child to the school without an apology, and thereafter to permit the child to absent himself during the reading of the King James version of the Bible. An alternative writ was issued, a -hearing- on the merits had, and thereupon the court made findings of fact, conclusions of law, and rendered judgment quashing and dissolving the writ and dismissing the action. Relator appeals from the judgment and an order denying a new trial.

Appellant contends- that the order and acts of respondents invade his and his son’s constitutional rights. All states of the Union, as well as the federal government, have constitutional provisions calculated to secure religious freedom. ^~Such provisions, while differing somewhat in language, have the same general purpose. The meaning of the provisions of the several Constitutions have been before the courts for construction and application to facts similar to those in this case many times. The decisions are not in complete harmony, nor the reasoning always satisfactory. The lack of harmony is to some extent due to differences in the language of the provisions under consideration, and to what appears to be a too technical construction' of such language. There is also an inherent difficulty in getting a truly judicial expression because of personal beliefs and prejudices of the judges making the decisions. The questions here presented are before this court for the first time, and the decisions of other states may be profitably considered and studied. The subject should be approached broad-mindedly, so as to uphold the spirit and purpose of the constitutional provisions, without technical reasons or construction. To do so we must have in mind the historical reasons for the constitutional guaranties' This country was not settled by men and women of no religious faith, but by people of fervent religious convictions, who were driven from their mother country by persecution because of those beliefs.They are responsible for the guaranties appearing in the 'Constitutions of the United States and the several' states of the Union. They knew by actual experience the evils of governmental control of matters of religion, and therefore sought to secure in this country a religious freedom never before enjoyed in any country. The wisdom of their course is apparent when we consider the enlightened spiritual growth of our churches, the very general religious character of our people, the many sects existing in harmony with almost complete freedom of religious thought, and all free to worship God according to the dictates of conscience. Religion cannot be enforced by law; it must result from honest conviction. The advantage in separation of church and state is exemplified in our highly enlightened, free, and ¡Christian nation. Whatever may be the language of the Constitutions, the primary purpose of each is to insure religious freedom. Any act which interferes with such liberty is necessarily contrary to the spirit and purpose of the Constitution, and therefore forbidden, whether expressly named therein or not, and, on the other hand, any act which does not so interfere is not unconstitutional unless expressly enumerated. The primary purpose to be obtained is of a two-fold character, one to insure personal freedom of .conscience, and the other to- prevent the support of any religious organization or sect by the state through public taxation.

This being a Christian nation, "controversies seldom arise over the rights of other religions as opposed to the Christian religion, "but the controversies are generally between sects of the Christian religion. Whether a Mohammedan or other believer in a religion opposed to Christianity would have the same right to object to practices tending to exalt Christianity over other religions need not here be decided. Some of the decisions seem to so hold, and use as an illustration the reading of the Koran, compared with the Bible. We can conceive some difference, and do not think such illustration apt. If the Koran was read or the prayer of a Mussulman repeated, it would not be in worship, while a reading of the Bible or the repeating of the Lord’s Prayer is 'bound to be in a Christian nation reverenced for its religious meaning. [We must take judicial notice of the character of the Bible and its meaning in this state. As said in Herold v. Parish Board, 136 La. 1034, 68 So. 116, Ann. Cas. 1916A, 806, L. R. A. 1915D, 941: “The ‘lessons and truths’ contained in the Holy Bible, to be taught through reading b)’ the teachers from the Bible to the children of the school; for the purpose of teaching morality, are read and taught as teachings from the inspired Word of Cod Himself. To read the Bible for the purpose stated requires that it be read reverently and worshipfully. As God is the author'.of the Book, He is necessarily worshipped in the reading of it.”," To the believer the Bible is the Word of God and to all others reared under Christian influence, though not professed believers, th’d influence of the Bible and the reverence in which it is -held is entirely 'different from the sacred writings of non-Christian sects.

The conclusion is inescapable that the reading of the Bible under the circumstances here disclosed was not for a secular purpose, but was, as found by the trial court, for the purpose of “increasing, improving, and inculcating morality, patriotism, reverence, and the developing of religious and Christian characters of' the pupils.”A,To use the Bible, with the .explanation that it was-used as a mere,.code of morals or a book of history, would be to affront all Christian sects; to use it without explanation would be to use it in its generally accepted character. It is hardly adaptable for use in secular instruction without comment and analysis. Appellant’s counsel aptly sa}r; “No other book is read to the pupils of a common school under such extraordinary conditions — no book of profane history, no 'book of-poems, no book of animal life, no book of painting, architecture, s’culpture, or music. ‘King Lear’ may be commented upon at will, but the Book of Job, the first great drama, with its thundering passages, must 'be read unexplained ! The Phillippics of Demosthenes, vitalizing the atrophied patriotism of his Athenian countrymen, may be discussed and debated, but not the eloquence of Paul, with its denunciation of pagan gods and its inspired defense of 'Christianity! The ‘Idylls of the King’ are hedged with no such limitations, but Ruth must glean in the fields of lloaz without either praise or blame, tribute or comment! Plow is it possible to approve the reading of. the Ploly Bible ■without comment as a book of secular instruction?”

There is much force to this argument. The legitimate function of our public schools is to impart secular knowledge, and there can be no proper limitation on the comment necessary to- impart such knowledge, if the subject is to be taught at all. On the other hand, under our system of 'government, religious teaching is committed to individuals and religious organizations not supported by the state, where religious books- are used with unlimited right of comment. The limitation on the right of comment discloses the purpose of the order of the school board to enter the field- of religious instruction, but not into‘sectarian controversy. It may seem that in the field of religion, occupied solely by sects of one religion, there should be some margin where there is no dispute between those sects; but at the outset a difficulty arises over file authenticity of the Scriptures upon which the sects are founded.'!

In the instant case the dispute arises over the reading of the King James version of the Bible, which is acceptable to the Protestants, but not to the Catholics. Both Catholics and Protestants profess Christianity. No other religion is involved, -but the contest is between separate organizations of the same religion. The living or vital force of 'Christianity is not attacked. But the Constitutions were not intended to apply only to freedom of other religions from state support of the Christian religion, but they were more particularly intended to apply to sects of the common national religion. The persecution of our forefathers was merely one organization fighting another organization, and none of them fighting the living-principles of the Bible, one trying to force on another its construction of the Bible and mode of worship. The primary object of the Constitutions was to prevent that'■'form of persecution. No other form was threatened or feared. -In, the cases cited, most of the controversies arose over a reading of the King James version of the Bible in a public school, which was objected to 'by Catholic pupils and their parents. Those cases are in point and worthy of our careful consideration.

Tn the case at bar that version was not only read, but the Catholic children were compelled to attend upon such reading under penalty of expulsion. In many of the cited cases attendance was not required, the question being whether such reading violated liberty of conscience by forcing attention to the religious beliefs of such children, although they were- allowed to absent themselves from the school for the time being.' Here relator contents himself with a re-instatement of his son in school, with liberty to absent himself during such' reading. We call attention to this as a stronger and less technical case in his favor, though we do not feel we should confine our opinion to narrow limits.

Article 6, § 3, of our Constitution provides: “The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state. No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given b3r law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.”

That section secures liberty of conscience with certain exceptions, and appellant does not fall within the exceptions, for it can hardly 'be said that absenting oneself from a reading of the King James version of the Bible is licentious, an invasion of the rights of others, or a practice inconsistent with the peace or safety of the stated It may be argued that the peace and safety of the state is enhanced by the teaching of pur youth morality, reverence, and wholesome religious beliefs. Speakig for myself, I think it is; but it does not follow that a reading of the King James version of the Bible in our public schools is essential to such teaching. Respondents frankly concede that the reading of any version would accomplish the same purpose. The difficulty in reading- any version in the public schools seems to be in agreeing upon the version to be read and the person to read it. But it is not necessary, for the teaching of religion to the youth, that it be taught in the public schools. We have many churches whose function it is to teach religion. The teaching of that particular subject in public schools seems to be so fraught with difficulties and dissensions that it is not practical to undertake it. / About as far as we can go in that field in the public schools without opposition is to teach that there is an All-Wise Creator to whom- we owe love, reverence, and obedience, leaving to .the churches other religious instruction. A review of history and a comparison of our institutions with those of other nations where religion is under state control reveals the wisdom of our policy. It will not do, by an ill-advised decision, to impair liberty of conscience so carefully safeguarded in this country. ■

It remains to be seen then whether the reading of the King James version of the Bible in the public schools does-infringe upon the liberty of conscience of the Catholic children.' Section 7659, Rev. Code 1919, provides: “No sectarian doctrine may be taught or inculcated in any of the public schools of the state, but the Bible, without sectarian comment, may be read therein.” No version of the Bible is mentioned in the statute, and it may be noted that the order of the school board does not mention version, f Any version .of the Bible will satisfy the statute or the order of the board. ' But the version used was the King James version, which the court will judicially notice is a version acceptable to the Protestants, and not to the Catholics. The Douay version is the version in universal use by the 'Catholics. The trial court found that there is no substantial difference between the two- versions. This so-called finding is challenged by appellant as a mere conclusion. If it is a conclusion, it must be' supported by reason. If it is an ultimate fact, as contended by respondent, it must -be supported by evidence.

To determine whether there is no substantial difference, it is necessary to consider wherein they differ.. .-Several differences were pointed out in the evidence, and no doubt' the court may take judicial notice of the contents of both versions and ascertain the differences by comparison. But whether the differences are substantial or not -must depend upon the use which the Bible serves. If one were studying the two translations and comparing them with the scriptures in the original tongue, it is evident that every difference would be important and substantial to -the scholar so engaged; on the other hand, if the use was as a text-book in reading, no difference would be important. ' If used to teach morals, the morals of one are as elevating’ as the other, and there is no substantial difference; but if used for religious - purposes, the materiality of the difference in language must depend upon the religious belief to be inculcated and the importance of the words to such faith.

It is well known that the Protestants do not place any great importance on differences in translations in several versions of the Bible, but they accept and use each and all versions as substantially the same, and as teaching the same fundamental • doctrines; the single exception being the Douay version, in use by the Catholics. Their dbj ection to that version seems to be that it. is considered the ■Catholic Bible, sanctioning some of the dogmas and practices of the Cáthol'ic Church denounced by Protestants. If their aversion is well founded-, that alone is sufficient evidence of a substantial difference.' The Douay version contains six books not found in Protestant .translations and considered apocryphal by the P'rotes■tants. Among these are First and Second Maccabees, containing passages from which the 'Catholics obtain their belief in purgatory. In Matthew 6:ti, a sentence of the Lord’s Prayer is rendered in the.King James version, “Give us this day our daily bread,” where the Douay version says, “Give us this day our supersubstantial' bread.” In Matthew 3:1,2, the King James version is: “In those days came John the Baptist,, preaching in the wilderness of Judea, And saying, ‘Repent ye; for the Kingdom of Heaven is at hand.’ ” The Douay version translates the second verse: “Do penance, for the Kingdom of Heaven is at hand.”

Penance is a sacrament of the Catholic Church not recognized at all by Protestants. Such changes give rise to bitter doctrinal controversies. Many other differences appear, which we cannot take space to note. But they have given rise to bitter controversy pertaining to the rites and practices of the Catholics, to celibacy of the priests and nuns, and to the authority claimed by the Pope. While the differences may seem inconsequential to many, the)' are sufficiently substantial to engender in the field of religion heated conflicts.

The King James version is a translation 'by scholars of the Anglican church bitterly opposed to the Catholics, apparent in the dedication of the translation, where the Pope is referred to as “that man of sin,” and in which the translators express themselves as expecting to be “traduced by Popish persons,” who will malign them, because such persons desire to keep the people in “ignorance and darkness.” We are .satisfied that neither the evidence nor reason will justify us in sustaining' the trial court’s finding that the differences in the two versions of the Bible for a religious purpose are not substantial. History of the conflicts between Catholics and Protestants over those very differences refute such conclusion. It makes no difference what our personal views may be as to the importance of the controversial words. As officers of the state, speaking for the state, neither we nor the teachers of the public schools can say that one side 'is right and the other wrong. We must leave that to the -conscience of those involved. / • >

( Now, as we proceed to review a few of the cases involving' the same or similar questions as are now before us, we are -impressed with the lack of uniformity of the decisions under Constitutions seemingly of the same import. We are more impressed with the reasoning- of different judges and illustrations used to clarify their-meaning. Why cannot logic be applied with uniform result? -Sound reasoning from a sound premise should reach but. one sound conclusion. The premise is the thing of first importance, .and, searching for the premise from which the reasoning proceeds in each case, we find it differs. The broad general purpose of the constitutional provisions is to insure religious liberty. There seems to be -but little difficulty, and few cases arise, except in the field of education, and there most often between the Protestants and Catholics. There must be a cause for this. Ourhsystem of government' seeks to separate church and state. This can be done only where the field of operation of each is known, and each permitted to function therein.")

In the field üf education it is the function of the churches to teach religion. And when we consider the theories, -dogmas, beliefs, and practices evolved from a study of that subject, with the bitter dissensions between organizations over conflicting theories, we must conclude that religious freedom requires that education in that subject rest exclusively in the churches and individuals, where all are free to adopt or reject any belief or faith according to the dictates of conscience. If that is true, then the state- in its functions as an educator must leave the teaching of religion to the church, because the church is the only body equipped to so teach, and on it rests the responsibility. Bearing this in mind, there need be no shock to the moral sense, nor to our religious instincts, in barring religious subjects from our public schools and placing them where they belong, to be properly taught. Children of Catholics, Methodists, Presbyterians, Episcopalians, Baptists, or any other sect are not deprived of religious education because not taught in the public schools. To teach a class composed of all denominations just what the parents of each desire, neither more nor less, is an obvious impossibility. It may be that the child has no religious conviction, and so could be taught anything without violating its conscience; but parents with children of tender age may feel that it is their religious duty to give to the child proper religious instruction and to guard it from heresies. Consequently, if the state teaches religion, many parents will, because of their religious belief, keep their children from such teaching, and thereby be deprived of all public school privileges.

¿Another premise to be firmly fixed is that reading the Bible, or offering prayer, or both, in opening exercises, is devotional, a form of religious instruction, and not a part- of the secular work of the school. One serious complaint made by religious people is that by excluding such exercises we thereby make our schools Godless. Such complaint argues that the converse would be true if such exercises were allowed, indicating that such exercises are considered devotional.

Starting from these two premises, we call attention to a few cases. A late case, decided in April, 1927, is Kaplan v. Ind. Sch. Dist. of Virginia, 171 Minn. 142, 214 N. W. 18, 57 A. L. R. 185. The Ministerial Association of the City of ’Virginia, Minn., asked that a copy of the Bible be placed in every schoolroom of the public schools of the city, and that the superintendent make suitable selection therefrom, to be read daily, without note or comment, by the teacher in each room at the opening of school. Such request was granted, and the King James translation of the Bible was read in opening exercises. The 'Catholics objected, and the case came before the Minnesota court upon constitutional grounds. It was held that no constitutional right of a Catholic pupil was violated. Judges Holt, Dibell, and Stone each wrote opinions sustaining- the action of the school board, and 'Chief Justice Wilson dissented. Judge Holt says: “We do not think there is good reason for making- fine distinctions between the constitutional provisions of the different states.” With this we agree.

We also agree with his statement that one of the main purposes of the constitutional provisions is to prohibit “the majority from using the government in any form to further any sect or church.” But Judge Holt’s opinion seems to proceed on the theory that the reading of the Bible under the circumstances disclosed was secular in its nature; that it was read as a text-book of morals. Upon this premise he reaches the conclusion that it may be so used. We think his premise wrong, and that such use of the Bible was necessarily devotional. We concede that literature, history, astronomy, geology, or any other secular subject may be taught, and that, although a knowledge of those subjects may have a tendency to modify one’s religious views, it is no reason for excluding the teaching of such subjects. In the study of literature or other subjects, a quotation from the Bible may be useful in the study of the subject; but such quotation is incidental to the subject pursued, and its use is not devotional or religious; very different from its use in devotional exercises.

At the risk of being accused of repetition we' emphasize that in our opinion the reading of 'the Bible and repeating- of the Lord’s Prayer without comment in opening exercises is necessarily devotional. 'Comment is absolutely essential to confine it to mere moral or patriotic instruction, and it would seem that a teacher would be at a loss for words to confine the prayer to nothing but moral instruction. It is in its very nature devotional. The cases sustaining Bible reading in school exercises consistently evade or ignore this fact and thereby fall into error. The line dividing secular subjects from religious subjects is no more difficult to define than man)' others presented for judicial determination. Judge Stone says: “All must agree that there is an ignorance of conscience as objectionable and dangerous as ignorance of mind. It is therefore the function of education to develop conscience as well as mind.” From this premise he naturally arrives at the conclusion reached by a majority of the court, but his premise is faulty, in that it assumes that such instruction cannot be had, unless taught in the public schools. There has been no lack of instruction in such subjects. The Protestants are not worried for fear the Catholic children will receive no religious or moral instruction. Their objection is to the quality.

Chief Justice Wilson’s dissenting opinion seems to be based on the -broad general principle that the Constitution guarantees religious freedom. He says: “The Catholic people do not believe it light to have a Bible read to their children, in the absence of the light of construction placed thereon by their church. Are these people to -be content to have a Bible read which substantially ignores the doctrine of purgatory, which is one of their vital .'beliefs ? On the contrary, may a Catholic school board have the Catholic version of the Bible read, disclosing the theory of purgatory as indicated in the Book of Maccabees, and not interfere with the ‘rights of conscience’ of Protestants? The Catholic Church objects not only to the King James version of the Bible, but also to its votaries reading any Bible except their own version, with its copious annotations explanatory of the construction made 'by their church. They subordinate the Bible to the church, while Protestantism is a Bible Christianity. In the eyes of the 'Catholic, therefore, the use of the Bible in the school is, in effect, an indorsement of Protestantism and a repudiation of Catholicism. Is this the religious freedom contemplated by the Constitution? I think not. Is there not an interference -with the ‘rights of conscience’ when we read in our schools a Bible whose dedication assails the Pope as the ‘man of sin’ and accuses him of desiring" to keep the people in ignorance and darkness? The Catholic considers, and well he may, that the Bible is read in a spirit of worship, in a spirit of devotion, in a spirit of prayer; that its reading is the equivalent of prayer, in a spirit of seeking God’s blessing and guidance in the school 'work. They regard the reading of the Bible as an evangelical religion. It cannot be said that such belief is without foundation. But, regardless of actuality, how may we take unto ourselves the prerogative of saying there is not an ‘interference with the rights of conscience?’ Such, to my mind, necessarily follows. Otherwise this language is meaningless, and its application a conundrum or an enigma.”

The judges favoring the majority opinion all express doubt as to the wisdom of the school board in taking such action, seeming to feel that it is a cause of needless friction and dissension in the school district.

In People ex rel Vollmar v. Stanley, 81 Colo. 276, 255 P. 610, decided in March, 1927, the constitutional right to read the King James version of the Bible in the public schools was involved. That case presents facts very similar to those in the case at bar, in that the Bible was not’ only read in opening' exercises, but the Catholic children were required to attend upon the reading. The Colorado court held that the compulsory attendance was unconstitutional, but that there was no violation of any constitutional right to read the Bible, if such children were permitted to absent themselves during the exercises. The court devotes considerable time to discussing whether or not the Bible is sectarian in character, and reaches the conclusion that it is not. But it did not consider the broad ground of religious freedom. The court, therefore, seems to have failed to consider the reading of the Bible under such circumstances as an act of devotion and worship. Secular subjects are not usually taught in opening' exercises. The case also turns quite largely on the discretion of the board to prescribe the subjects of study, without deciding how far, if at all, religion may be taught in public schools.

In Herold et al v. Parish Board, 136 La. 1034, 68 So. 116, Ann. Cas. 1916A, 806, L. R. A. 1915D, 941, decided in April, 1915, the court holds that the reading of the King James translation of the Bible, including the Old and New Testaments, in the public schools of the state, is a preference given to Christians and a discrimination against Jews, but reaches an opposite conclusion as to Catholics. There were three complainants, two being Jews and one a Catholic. In this holding the Louisiana court says the Catholics believe in all the Bible, and that it will not concern itself “with the differences, or alleged errors, in the different translations of the Christian Bible.”

In Hackett v. Brooksville Graded School, 120 Ky. 608, 87 S. W. 792, 69 L. R. A. 592, 117 Am. St. Rep. 599, 9 Ann. Cas. 36, it was held that the King James translation of the Bible was not a sectarian book, and that a certain prayer that was offered was not sectarian. The question of religious freedom was not presented or considered. The court says: “The complaint in this case goes only to the sectarian feature of the exercises, not because they were religious.” As to the sectarian feature the court says: “.The book itself, to be sectarian, must show that it teaches the peculiar dogmas of a sect as such, and not alone that it is so comprehensive as to include them by the. partial interpretation of its adherents.” There seems to 'be much force to this reasoning, so far as Christian sects are concerned. The dispute there, as in the case at bar, involved a dispute between Christian sects, and no distinct religion was involved. In this case we do not feel that the question of sectarian teaching is controlling, and do not decide that feature, preferringto put our decision on the broader ground of religious liberty.

In State ex rel Freeman v. Scheve, 65 Neb. 853, 91 N. W. 846, 59 L. R. A. 927, amplified by a second opinion on rehearing- reaching the same result, 65 Neb. 876, 93 N. W. 169, 59 L. R. A. 927, decided in 1902, it was held that such exercises- were unconstitutional, on the ground that it was worship and sectarian instruction.

A leading case so holding- is State ex rel Weiss v. School Board, 76 Wis. 177, 44 N. W. 967; 7 L. R. A. 330, 20 Am. St. Rep. 41, decided in 1890. We do not deem it necessary to quote further from decisions. There are many holding such exercises unconstitutional, while several hold otherwise. Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256, decided in 1854, holds such reading of the Bible constitutional, on the ground that it was claimed to be used as a text-book for reading. This seems a farfetched excuse, when it is considered that only such pupils as were able to read it were required to participate in the reading. Texts for reading are usually used by those ‘who need to acquire the art.

The mere selection of a disputed translation would seem to be a preference for the sects holding to such translation, and thereby aiding them in inculcating their doctrines. In O'Connor v. Hendrick, 184 N. Y. 421, 77 N. E. 612, 7 L. R. A. (N. S.) 402 6 Ann. Cas. 432, it is held the mere wearing of the garb of the sisters of St. Joseph by one of the teachers constituted in effect sectarian instruction, and this was also the view of the Iowa court in Knowlton v. Baumhover, 182 Iowa, 691, 166 N. W. 202, 5 A. L. R. 841. The Iowa court characterizes a contrary holding in Hysong v. Gallitzin Borough School District, 164 Pa. 629, 30 A. 482, 26 L. R. A. 203, 44 Am. St. Rep. 632, as a “remarkable” conclusion.

We briefly consider some of the arguments by respondents in support of their action. They say: “We contend that the Bible is not exclusively a religious work. It is a history, among other things, a philosophy, and is replete with the time-tried rules of conduct, which, if universally followed, would leave in this world no room for religious denominations, political parties, or even governments. Its literary and historical value is everywhere recognized. Is it not reasonable to contend that facts of history may be established in the public schools by reference to some version of the Bible?” The answer to this is that it was not so used. Nor could it well be so used without comment.

Again they say: “If the religious or sectarian features of the Bible are omitted from the reading, no one can be heard to object.” Perhaps not, but the exercises were devotional, and would be worse than useless otherwise. Throughout their brief similar assumptions are used in argument, but we are not justified in so assuming for reasons heretofore stated. Respondents say: “There is a determined effort throughout the country to bar the Bible from the public schools. This effort is not being made by atheists, agnostics, and religious bolshevists, but by religionists, who for a thousand years have fought bitterly every effort to give the Bible to the people in the vernacular. They burned the 'bones of Wycliffe five hundred years ago to show their hatred of the man who had the temerity to defy the traditions of the church and give the Word of God in a tongue ‘understanded of the people.’ ”

This is a striking illustration of the bitterness that can and does grow out of religious disputes. In countries where the dominant sect can control religion through the power of the state, oppression results. This state has by its Constitution said the power of the state shall not be so used. It is our duty to uphold that Constitution!] It is essential to religious liberty that one be free to ■worship according to the dictates of his own conscience, and not only that, but to live and teach his religion. That right cannot be taken away by the state, and it follows that such teaching must belong exclusively to the individual and voluntary organizations of such individuals. The state as an educator must keep out of this field, and especially is this true in the common schools, where the child is immature, without fixed religious convictions, and the parents’ liberty of conscience is the controlling factor, and not that of the pupil.¡Jn institutions of higher learning the parents’ rights become less, and the conscience of the pupil may become the controlling factor. We are not concerned at this time with the chapel services in colleges, where pupils are gathered from distant homes, are often under direct supervision only in class hours, and where all religious denominations enter and minister to the spiritual needs of the pupils in many ways; nor are we concerned with chaplains in the army or the penitentiary, where sermons are preached. None of these are analagous, nor can they furnish apt illustrations. Nor do the facts of this case disclose an effort on the part of the state to instruct-children otherwise deprived of religious instruction. No law of necessity can 'be invoked.^] This -case involves the right of the Protestánts to read their translation of the Bible and conduct their form of worship in the common schools, and to compel the 'Catholic children to attend'upon such services over the objections of their parents. On the broad constitutional ground of an infringement of religious liberty, we must hold such action unlawful.

The judgment and order appealed from are reversed, and the trial court is directed to issue the peremptory writ of mandamus according to the prayer of the complaint.

POLLEY, J., concurs.

CAMPBELL, J., concurs in result.