William Howard Taft’s father, Alfonso Taft, was a judge on the Superior Court in Ohio. In one of his more noteworthy opinions, according to The Bully Pulpit, Judge Taft dissented, and found constitutional a law that would have allowed public schools to prohibit bible reading.
The most important opinion Judge Taft rendered on the superior court upheld the right of the local school board to prohibit the reading of the Bible in public schools. He argued in a dissenting opinion that “the Constitution of the State did not recognize the Christian religion any more than it recognized the religions of any other citizens of the state” and that “the school board had an obligation as well as a right to keep religious partisanship out of the public schools.” Alphonso was forever proud of his opinion, even though it prompted fierce opposition from conservatives.
His opinion perhaps cost him the governorship, but landed him a position in the Grant Administration.
At the suggestion of a group of prominent Republicans, Alphonso allowed his name to be put forward as a candidate for governor of Ohio. Though he lost at the convention to his friend Rutherford Hayes, in large part because of widespread opposition to his position on school prayer, his unblemished reputation for being “as honest as the day is long” caught the attention of President Ulysses S. Grant, who brought him into his cabinet. He served first as secretary of war and then as attorney general during Grant’s final months in office, where he was seen as a representative of the “reform element” against the “old regime.” While he enjoyed his short stint in Washington, he was happy to return to his beloved Cincinnati and resume the practice of law.
I found what seems to be a valid report of Minor et al v. board of Education of Cincinnati et al (Superior Court of Cincinnati, 1973). It was based on the Ohio Constitution, rather than the First Amendment, which at the time had no application in the Buckeye State. I paste it after the jump.
Opinion of Judge Taft.
Minor et al. v. Board of Education of Cincinnati et al.
instruction ?” If the Convention had so intended, it would have
been natural, and very easy to have so said, and the entire absence
of any expression of that purpose, affords a strong presumption
that no such intention existed ; and a singular intention it would
be, to provide that laws should be passed, requiring all schools, and
all the means of instruction to be religious, in the sense claimed by
the plaintiffs in this case. But no such purpose appears to have
been expressed, or intended.
The religion of the Bill of Rights, is not sectarian religion. I
understand by that term, as there used, reverence and love toward
Gpd, and charity toward man a sentiment cultivated in many
ways, among which are, undoubtedly, the various sectarian forms
of public worship, and, as I think also, all forms of useful secular
education. The great discoveries of science for the last thousand
years, have been but the results of searching God s works. The
principles of His creation have been sought, and in many
instances with great success. Our knowledge of the extent of the
creation has been vastly enlarged by the same means, until the
universe of the present day, compares with that of the Christian
Era, as the vast solar orb of the Copernican system, compares.
with the flat disk of a Roman denarius, bearing the image and
superscription of a Caesar. In this sense, scientific study is a
truly religious work. The study of the works of the great Cre
ators, and the principles or laws by which nature is uniformly, and
with no mistakes or failures controlled, leads the student to the
Author of all.
The fearful and wonderful structure of man s physical nature
has been analyzed, and the processes of digestion, respiration, and
circulation of the blood, have been by science revealed to man
kind, forever to increase their reverence and adoration of the
Divine Hand that made us.
These and similar researches in God s works have, by books
of instruction, been brought within the reach even of the children
in the common schools, as well as of the pupils of all the other
schools in the land, and have been more or less incorporated into
all the means of secular instruction. It is not, therefore, a violent
presumption to suppose that the framers of our last Constitution
thought that that religion and that morality, as well as that knowl-
396 Superior Court of Cincinnati.
Minor et a!, i). Board of Education of Cincinnati et al.
edge, of which they spoke in the Bill of Rights, would be promoted
by encouraging schools and the means of instruction generally.
It was no part of their theory that such knowledge, even
apart from that formal religious instruction which this first resolu
tion was intended to dispense with, was godless or immoral in its
tendencies. But, as I have said, the protection of every denomi
nation in its form of public worship, also promoted the religion
and the morality, of which they spoke in that section.
The Legislature has not omitted its duty toward religion,
under this section of the Bill of Rights. It has done precisely what
was enjoined upon it, passing suitable laws to protect every religious
denomination in the enjoyment of its own form of public worship,
and laws under which religious societies, as well as educational
institutions, can hold property, free from taxation. The amount
thus remitted every year to the churches is very large, and evinces
an abiding purpose, on the part of the General Assembly and the
public, to foster and strengthen all the instrumentalities by which
religion, morality and knowledge can be promoted.
It is reasonable to suppose that knowledge and morality would
be promoted by schools and the means of instruction. This
clause, however, does not say that “schools, with religious teach
ing,” or religious ” means of instruction,” are necessary to ” relig
ion, morality, and knowledge;” but, that “religion, morality, and
knowledge, being essential to good government, suitable laws
shall be passed to protect every religious denomination in its own
mode of worship,” so that they may flourish freely, without
intruding their peculiar modes upon each other, “and to encourage
schools and the means of instruction,” without limitation ; from
which it may be safely inferred that the framers of the Constitu
tion were satisfied that the encouragement of ” schools and the
means of instruction ” in any and all branches of useful learning
would tend to secure knowledge and morality, and religion in the
sense in which that term was evidently used. If it is insisted that
this constitutional provision for religion is not satisfied by ” the pro
tection of every religious denomination in its own mode of wor
ship,” but requires laws for the encouragement of ” schools and
the means of instruction” also, it does not follow that they are to
be schools with special religious teaching ; for the framers of the
Opinion of Judge Taft.
Minor et al. <v. Board of Education of Cincinnati et ah
Constitution expressed themselves as satisfied with the encourage
ment of schools and the “means of instruction” generally. This
would be the natural and only construction which we could give
this clause, even if the provision for the protection “of every
religious denomination in its own form of worship” were omitted.
But, let us for a moment suppose that the term religion was
used by the convention in the narrowest sense claimed for it, viz.:
the Protestant Christian Religion. It would not follow that
schools and means of instruction must necessarily be of that char
acter. The words in the preamble of that clause, “religion,
morality, and knowledge,” and the subjects of the main declara
tion which follows, viz : The protection of the various forms of
public worship, and ” schools and means of instruction ” would
naturally be construed distributively, singula singulis, religion being
the antecedent of the first part of the declaration, viz : The pro
tection of the forms of worship, as knowledge would be the ante
cedent of the last ; ” schools and means of instruction ” being of
the same nature, and regarded as one. The insertion of this pecu
liarly religious instrumentality, viz : ” the protection of every
religious denomination in its own form of worship,” which must
be taken to refer to ” religion ” in the preamble, and can not pos
sibly be taken to refer to ” knowledge ;” and designating no other
” religious ” instrumentality, and omitting to qualify ” the schools
and means of instruction” as religious, leaves them to refer directly
to their proper antecedent, “knowledge,” as an essential to good
government, and only indirectly, if at all, to “religion,” which was
the proper antecedent of the other instrumentality, viz: the pro
tection of religious worship. It is not material to determine by which
of these instrumentalities morality was to be promoted, as it derives
support from both.
But schools and the means of instruction, as here described,
without including any special religious instruction or reading of the
Bible, are as well adapted to promote ct religion, ” one of the
essentials to good government, as the protection of every re
ligious denomination in its own mode of public worship, is
adapted to promote knowledge, another essential to good govern
ment, while both may fairly be regarded as promoters of
” morality.”
39 8 Superior Court of Cincinnati.
Minor et al. v. Board of Education of Cincinnati et al.
This mode of construction can only become necessary or
natural, by supposing the term religion, as used in the preamble, so
restricted in its meaning as not to have relation to all of the sub
jects of the following declaration ; in the same manner as the term
knowledge may be supposed to have no particular relation to the
protection of forms of denominational worship. As I understand
” religion,” however, in that clause of the Bill of Rights, it, as
well as ” morality” and “knowledge,” has a direct relation to
” schools and means of instruction,” whether including special
religious teaching or not. If the words ” morality ” and ” knowl
edge ” had been omitted from the preamble of the clause under
consideration, and the words relating to religious denominations
had been omitted also, in the declaration itself, so that it should
read thus : ” Religion, however, being essential to good govern
ment, it shall be the duty of the General Assembly to pass suit
able laws to encourage schools and the means of instruction,” it
would not even then bear the construction claimed by the plaintiffs.
It would only appear that the convention regarded the encourage
ment of schools and the means of instruction as favorable to the
promotion of the religion which they deemed essential to good
government ; and it would not be possible to hold that the con
vention intended to impress a specially religious character upon all
the schools in the State, and upon every means of instruction.
A fortiori, from the words as they stand, there is no sound
reason to infer that the framers of the Constitution intended to fix a
religious character upon all the schools and all the means of instruc
tion, to be encouraged by suitable laws ; especially upon the
common schools, which are not named in that connection, but
which are expressly provided for in another place, viz : art. 6, sec.
2, without any religious restriction whatever. They must be taken
to have intended what they have expressed.
On what ground then can we interfere to compel the Board
of Education to incorporate religious instruction in the exercises of
the common schools ?
If it is now in the common schools, it has been placed there
by action of the Board. If it is to be, hereafter, incorporated with
the other teaching in the schools, it will be through the same body,
unless the Court should take the management of that department.
Opinion of Judge Taft.
Minor et al. >v. Board of Education of Cincinnati et al.
That the school laws contain no such requirement is conceded,
and I find no foundation for it in the Bill of Rights.
If then, we interfere to restrain the discretion of the Board
on this subject, as prayed for in the petition, we shall assume a
power, expressly given to that body. For by section 9 of the
school act of January 27, 1853,
The Board shall have the superintendence of all the com
mon schools in the city, and from time to time to make such regu
lations for the government and instruction of the children therein,
as shall appear to them proper and expedient.”
“And generally to do and perform all other matters and
things pertaining to the duties of their said office which may be
necessary and proper to promote the education, morals, and good
conduct of the children in said schools.”
And by the I2th section of the same act,
The common schools in the several districts of the city,
shall at all times be equally free and accessible to all white children
not less than six years of age, who may reside in said city, and
subject only to such regulations for their admission, government,
and instruction, as the Board of Education may from time to time
provide.”
No broader discretion could be given by a statute to a Board
in the selection of the course of studies, and in the management of
the schools generally. The statute requires no formal worship,
nor does it require religious instruction in the schools, but gives the
whole subject of their government and instruction, unqualifiedly,
into the hands of the trustees, who are to be selected by the peo
ple. If the Board should exclude any particular branch of educa
tion, it would not justify the Court in interfering. For the selection
of the instruction to be given and of the books to be read, has
been entrusted, not to us, but to them. If we should find ourselves
differing with the Board in our opinion of what its duty required it
to incorporate in the course of instruction, we should have first to
consider which of us is by law entitled to decide that question.
Neither of us can change the law. It is as binding on the
Court, as on the Board of Education. The law has expressly
4OO Superior Court of Cincinnati.
Minor et al. -v. Board of Education of Cincinnati et al.
conferred that discretion upon that body. I will not stop to give
illustrations, which are obvious, and at hand, on this point.
But, if the plaintiffs were right, in construing the words
“schools and the means of instruction,” to mean ” schools” with
religious teaching and religious ” means of instruction,” it would not
help the plaintiffs case, because this clause in the Bill of Rights is
made expressly to depend on legislation, and can have no force
proprio vigors : and the Legislature has never given effect by law to
any such construction of it as is now claimed.
This provision of the Constitution is addressed to the General
Assembly, and that body is made the judge of what laws are suit
able for the purpose. These school acts are the result of a judi
cial discretion in the General Assembly to decide what are ” suit
able laws,” as well as of legislative power to pass them.
That this clause of the Bill of Rights is addressed to the Gen
eral Assembly or law-making power, can not be disputed.
If the General Assembly should even neglect to act by pass
ing laws encouraging schools, it might be great unfaithfulness to
the Constitution on its part, but the judiciary could not interfere,
because the Constitution has entrusted that duty to the General
Assembly. For a non-performance of that duty, the General
Assembly would be responsible to its constituents. If the Gen
eral Assembly, instead of neglecting its duty on the subject, passes
laws, these laws form the rule for the Board. The General Assem
bly has the discretion expressly conferred uponjt judicial, as well as
legislative, to accomplish a purpose by ” suitable laws,” and there
is no other source from which ” suitable laws,” can be derived.
Courts can not make them. And those which have been passed,
must be taken to be ” suitable.” This principle is not novel, or
unreasonable.
In the case of Glllenwater v. Mississippi and Atlantic E. R. Co.,
13 Ills. R. I., it was urged that a restriction upon railroad corpora
tions by the general railroad law was a violation of the provision of
the Constitution which enjoined upon the Legislature, “to encour
age internal improvement by passing liberal general laws of incor
poration for that purpose.” The Court said : ” This is a constitu
tional command to the Legislature, as obligatory on it as any other
of the provisions of that instrument, but it is one which can not be
Opinion of Judge Toff. 401
. Minor et al. <v. Board of Education of Cincinnati et al.
enforced by counts or justice. It addresses itself to the Legisla
ture alone, and it is not for us to say whether it has obeyed the
behest in. its true spirit. Whether the provisions of this law, are
liberal, and tend to encourage internal improvements, is matter of
opinion about which men may differ ; and as we have no authority
to revise legislation on this subject, it would not become us to
express our views in relation to it/
The case of Maloyv. The City of Marietta, u O. S. R. 636,
turns on the same principle. That case rose on the sixth section
of article xiii, of the Constitution, which is, ” The General As
sembly shall provide for the organization of cities and incorpor
ated villages by general laws, and restrict their power of assess
ment, so as to prevent the abuse of such power.” It was claimed
that the General Assembly had granted an ” unrestricted ” power
of making such assessments.
The Court say, p. 638, ” Were this true, it might be ques
tionable whether the Courts could, for that reason, hold the grant of
power to be void. The Constitution clearly imposes a duty upon
the Legislature, but does not direct when or how it shall be exer
cised.”
Speaking of this provision and the duty thereby enjoined,
Judge Ranney, in Hill v. Higdon, 5 O. S. R. 248, says ” a failure
to perform this duty, may be of very serious import, but lays no
foundation for judicial correction.” It was further held that the
“mode and measure” of restriction, rested with the Legislature,
and could not be reviewed by the Courts.
The Supreme Court of the United States in the case of
Groves v. Slaughter , 15 Peter s Rep. 449, which was very much
considered, recognized and acted upon the same principle. The
suit in that case was brought upon a note given for slaves imported
into Mississippi, and the question was, whether the consideration
was void under the Constitution of that State of 1832, which pro
vided, “That the introduction of slaves into this State, as mer
chandize., or for sale, shall be prohibited, from and after the first
day of May, 1833.” The Constitution of 1817 had declared that
the Legislature should have power to prevent slaves being brought
into the State as merchandize. The time and manner in which it
was to be done, was left to the discretion of the Legislature. By
402 Superior Court of Cincinnati.
Minor et al. -v. Board of Education of Cincinnati et al.
the Constitution of 1832, it was no longer left a matter of discre
tion when this prohibition was to take effect, bnt the first day of
May, 1833, was fixed as the time.
The Court says, Judge Thompson giving the opinion : u But
there is nothing in this provision which looks like withdrawing the
whole subject from the Legislature.” ” It looked to legislative
enactments to carry it into full operation.” The Court proceeded
to say : “Admitting the Constitution is mandatory upon the Leg
islature, and that they have neglected their duty in not carrying it
into execution, it can have no effect upon the construction of this
article. Legislative provision is indispensable to carry into effect
the object of this prohibition. The enacting part of the article,
-Shall he prohibited, is addressed to the Legislature.”
That was a strong case, because the injunction was direct
upon the Legislature, that by a specified time a specific thing
should be done, viz : The importation of slaves should be pro
hibited.
In the present case, the framers of the Constitution have con
ferred a large judicial discretion upon the General Assembly, to
select such legislative provision as, in its judgment, shall be suit
able to accomplish the purposes prescribed ; and the General
Assembly has, really, left no room for argument upon the proper
means of accomplishing that purpose, because it has given an
authentic and binding construction, when it passed the law under
which the Board of Education was created and the common
schools organized. Not only has it decided this question when it
passed the common school laws without hinting at religious instruc
tion, but it has decided the same question again and again, as often
as laws have been passed for the encouragement of other schools
and other means of instruction, by incorporation and otherwise,
sometimes requiring, and sometimes not requiring, provision for
religious culture.
Such a claim as that now made by the plaintiffs is sustained
by no adjudications on like statutes, even where the construction
of the constitutional provision was not doubtful, as it was in the
case of Groves v. Slaughter. How can this Court make such a
precedent in a case where the General Assembly has actually
Opinion of Judge Taft. 403
Minor et al. -v. Board of Education of Cincinnati et al.
carried out the natural and the literal construction of the pro
vision ?
It has been suggested, that this reasoning does not apply,
because the Board of Education were exercising legislative powers,
and so were acting in the capacity of the General Assembly under
the Constitution, and were bound by it. A moment s reflection
will show that this can make no difference whatever. For, if we
were to admit the suggestion that the Board was, for this purpose,
the General Assembly, then it has the same power over the sub
ject, and its construction is as binding as that of the General
Assembly itself.
I hold, then
That the defendants appear to have acted, in the adoption of
this first rule, with due respect for the rights and opinions of all
the people entitled to the benefit of the common schools.
That the rule is not in conflict with the seventh section of
the Bill of Rights, by the fair and natural construction of the
language of that section.
That, if the construction were doubtful, the General Assem
bly, on which the Constitution had devolved the power and duty
of determining what were suitable laws under said section, has per
formed its duty by passing the common school laws, and has
thereby made a decision, from which there is no appeal except to
the people, that these are suitable laws ic to encourage schools.”
That it is our duty to ascertain what these school laws are, and
abide by them, as we can not change them or make others, or
decide even what they ought to be.
That the school laws thus enacted, confer on the Board or
Education complete discretionary power over the government and
management of the common schools, including power to adopt
this rule, which is not in conflict with any law or constitutional
provision; and
That this Court, in assuming to restrain the Board from car
rying said rule into effect, is going beyond its proper sphere to
decide a question which the law has placed within the exclusive
discretion of the Board of Education.
404 Superior Court of Cincinnati.
Minor et al. v. Board of Education of Cincinnati et al.
II.
We come now to consider the second resolution.
In the absence of any statute whatever on the subject, the
School Board, many years since, adopted the rule requiring the
opening of the schools with the reading from King James version
of the Bible, and appropriate singing. In the like absence of any
statute, the present Board, of which the defendants are the major
ity, repealed the same rule; and the injunction has been applied for
against the Board, to restrain its action under the resolution. It is
obvious that all the considerations which have been presented in
support of the power of the Board to adopt the first rule, apply
also to their power to adopt this , while the constitutional objec
tion urged against the first, that it excluded all religious instruction
from the common schools, has no application. Such seems to
have been the view taken of the whole subject by the learned
counsel for the plaintiffs, who have rested their entire argument
on their objection to the first rule, and have presented none what
ever against the second. Nor can this be regarded as an inad
vertence ; for the second rule was not overlooked. It was con
ceded that the Board had a discretion to regulate the course of
studies and reading in the schools, but its power to exclude all
religious instruction, as was done by the first rule, was denied.
But it has not really been argued, and I am utterly at a loss to
conceive how it can be argued, in view of our Constitution and
laws, that the Board had exceeded its powers by passing the repeal
ing resolution. If the Board of Education have not power to say,
whether the schools shall be opened with the reading of the Bible
and singing, who has that power? It is not claimed that the Leg
islature has prescribed any such opening of the schools. The
Board itself made the rule, which no other person or body, under
the laws, could do, and now has repealed it.
Whether this opening exercise be regarded as worship or as
religious instruction, or simply as a lesson in reading and singing,
it falls equally within the discretion of no person or body, but the
Board of Education. The plaintiffs, by their petition, say that a
former Board removed all objection to this opening exercise, by
Opinion of Judge Taft. 405
Minor et al. v. Board of Education of Cincinnati et al. ^
excusing all children from joining in it whose parents made
a request to that effect. If the Constitution requires the opening
of all the schools by reading the Bible and singing, there can be
no exceptions; and the repeal of the exercise as to all the chil
dren, is not less constitutional than its. repeal as to part.
But there is no clause in the Constitution requiring that the
schools shall be opened by reading of the Bible and singing, or
that the Bible shall be read or not read in the schools. It is proper
here to remark, that there is a plain and practical distinction between
using the Bible as a book of reading lessons, and reading from it
with appropriate singing as an opening exercise every morning. I
shall have occasion to recur to this distinction in another connec
tion.
The extent of the discretion of a school board or committee
on the question of ruling the Bible in or ruling it out of the
schools, as a book of reading lessons, was passed upon in Donahue
v. Richards, 38 Maine R. 401, where the plaintiff” had been
expelled from the school because she refused to read in King
James version, but was willing to read in the Douay version.
The Court sustained the power and discretion of the Board over the
whole subject, holding that “both” versions “undoubtedly might
be used in the schools, or both might be excluded therefrom.” It
religious instruction is to be given in the schools, the Board ot
Education is to provide for it ; and if that body should prefer the
religious instruction contained in McGuffey s Readers, or the other
books which are supposed by the plaintiff s counsel to contain
religious instruction, it is not our province to determine which is
the best plan. Nor is the Board accountable to the Court for the
specific course of reading or study by which religious or other
instruction is to be given. Nothing is clearer than that in the
selection of the means of instruction in the common branches of
science the Board of Education, and no other body, has complete
and absolute discretion. It can try one plan, repeal it, and try
another. In exercising such a discretion the Board would be at
liberty to regard the opinions and conscientious scruples of the
people whose children were entitled to the benefit of the schools.
In Donahue v. Richards, 38 Maine R. 413, to which I have
referred, after an elaborate opinion fully sustaining the discretionary
406 Superior Court of Cincinnati.
Minor et al v. Board of Education of Cincinnati ct al.
power of the school committee, the Court placed its decision dis
tinctly upon that discretion, as not subject to judicial correction.
The Court closed by declaring :
” That it was the duty of those to whom this sacred trust was
confided, to discharge it with magnanimous liberality and Christian
kindness : that while the law should reign supreme, and obedience
to its commands should ever be required, yet in the establishment
of the law which was to control, there was no principle of wider
application and of higher wisdom, commending itself alike to the
broad field of legislative, and the more restricted one of municipal
action, than the precept, All things whatsoever ye would that men
should do to you, do ye even so to them, for this is the law and
the prophets. ”
The idea that the Christian religion was entitled to any higher
or other privileges, before the law, than ” the Pagan and Mormon,
the Brahmin and the Jew, the Swedenborgian and the Buddhist,
the Catholic and the Quaker,” was rejected, and the Sabbath, and
the use of the Bible in the schools, alike placed upon civil, and not
religious, considerations, citing with approbation, and quoting from
the opinion of the Supreme Court of Ohio, in Bloom v. Richards^
2 Ohio St. R. 388, on the subject.
There is, then, no hypothesis of fact or reason presented, or
supposed, by any argument that has been made in this case, or whicj
I can imagine, by which this Court can be justified in restraining
the action of the Board of Education under the second rule. I
hold that, whether the reading of the Bible and singing as practiced
in the common schools be regarded as worship, religious instruction,
or as simple reading and singing lessons, its introduction, continu
ance or discontinuance is entirely within the discretion of the
Board of Education.
III.
Having come to the conclusion, that the Board was acting
within its sphere, when it passed the resolutions, and so was not
amenable to judicial censure, I might here stop and rest my opinion
upon the power of the Board of Education.
Opinion of Judge Taft. 407
Minor et a/, -v. Board of Education of Cincinnati et al.
But the defendants have not been content to rest the resolu
tions simply on their power to pass them. They insist that in
passing % them they discharged a solemn duty under the Constitution
and laws of the State : a duty, which had become urgent by reason
of the great and discordant variety of religious faiths in the city ;
that they had found it impossible to provide religious instruction,
without offending the consciences of many ; and that practically
about one-third to two-fifths of the children entitled to the benefit
of the schools, were excluded by the rules, as they stood before the
resolutions were passed ; that the compulsory reading from the
King James version of the Bible, with singing, as an opening
exercise in the schools, daily, is regarded as a form of worship, and
is in violation of that part of the seventh section of the Bill of
Rights, which declares that :
” No person shall be compelled to attend, erect or support
any place of worship, or maintain any form of worship against his
consent ; and no preference shall be given by law to any religious
society : nor shall any interference with the rights of conscience
be permitted.”
All sectarian forms of worship are clearly excluded by the
Bill of Rights from the common schools, which are maintained at
the expense of all, and for the equal benefit of all, unless such form
of worship is acquiesced in by the parties interested.
It is to be observed here, that these provisions of the Bill of
Rights, for the protection of rights of conscience, are not left for
the enactment of suitable laws, by the General Assembly. They
operate on the Legislature and people alike. The General Assem
bly is forbidden to pass laws giving religious preferences : and ” no
person shall be compelled to attend or maintain any form of
worship, nor shall any interference with the rights of conscience
be permitted.”
No legislation is needed to give effect to these provisions ; but
they limit legislation, and form rules for Courts. In this respect,
they differ from the last clause in the section, on which the plain
tiffs rely.
What then is the character of the morning exercise of reading
a passage in the Bible, and appropriate singing in the schools daily ?
4 8 Superior Court of Cincinnati.
Minor et al. v. Board of Education of Cincinnati et al.
I think we are bound to regard it both as an act of worship, and a
lesson of religious instinction. That it is an act of worship, the
well known custom of the country, and indeed, of Christendom
shows. For, by that custom, such formal reading and singing, at
the opening of the duties of the day, uniformily mean worship.
It is intended to raise the thoughts of the participants to the
Father of all, to read His Word, and to sing His praise. It is as
a special message from Him that the passage from the Bible is
read. And so I am bound to suppose the plaintiffs regard it. For
if it was regarded simply as an ordinary reading lesson, it would not
have been claimed that it was not subject, like other reading lessons,
to be changed or discontinued under the rules of the Board.
The singing of Protestant hymns may be used to communi
cate dogmatic instruction as effectually as the Bible itself.
I can not doubt, therefore, that the use of the Bible with the
appropriate singing, provided for by the old rule, and as practiced
under it, was and is sectarian. It is Protestant worship. And its
use is a symbol of Protestant supremacy in the schools, and as
such offensive to Catholics and to Jews. They have a constitu
tional right to object to it, as a legal preference given by the State
to the Protestant sects, which is forbidden by the Constitution.
And here, I again refer to the obvious distinction between the
use of the Bible by way of worship, and its use as a reading book.
The Court in Donohue v. Richards, 38 Me. R. already referred to,
placed their decision upon the ground that the use of the Bible in
that case was as a reading book, and not by way of worship
or religious instruction. The question, whether the Board of
Education under our Constitution could make the Bible a read
ing book in the schools, contrary to the conscientious scruples
of the people, does not, in my opinion, arise in this case. For it is,
as a form of worship and religious instruction only, arid not as a
readmg book, that it is used in our schools, and as such, those who
object to it, have a right to regard it ; and that is the grouud, as I
have understood these proceedings, on which this suit has been
brought.
The answer states that the children of Roman Catholic parents,
equal to at least half the entire number of children who attend the
common schools, are kept away by reason of this rule ; that a large
Opinion of Judge Taft. 409
Minor et al. i>. Board of Education of Cincinnati etal.
number of Jews, who have children in the schools, object to the
rule from conscientious reasons.
The counsel for the plaintiffs insist, that the Bible can, in no
just sense, be regarded as sectarian, and that the conscientious scru
ples alleged, are not to be regarded.
The facts on which this question turns, are simple. The
Roman Catholic uses a different version of the Bible and includes
the Apocrapha, as part of it, which are excluded from the Protestant
Bible. The Protestant Bible is the King James version, which
the Catholics regard as not only not a correct translation, but as
distorted in the interest of the Protestant, as against the Roman
Catholic Church. They object, therefore, on conscientious
grounds, to having their children read it or hear it read. They say
and believe, that it is a source of fatal religious error.
Nor is the incorrectness of the translation the only objection
they entertain to the reading of the Bible in these schools. They
hold, that the Bible is entrusted to the Church, and that it is not a
suitable book to be read by, or to, children without explanation by
persons authorized by the Church and of sufficient learning to
explain and apply it.
We^are not at liberty to doubt the conscientious objections,
on the part of the Catholic parents to placing their children in the
schools, while the schools are opened by the reading of the
Protestant Bible and singing.
We have this unequivocal evidence of the reality of their con
scientious scruples, that, when they have paid the school-tax which
is not a light one, they give up the privilege of sending their child
ren, rather than that they should be educated in what they hold to
be, and what, without the adoption of one, or both of these resolu
tions, must be fairly held to be Protestant schools. This is too large a
circumstance to be covered up by the Latin phrase de mlnlmis non
curat lex, to which resort is sometimes had. These Catholics are
constrained every year to yield to others their right to one-third of
the school money, a sum of money averaging not less than $200,000
every year, on conscientious grounds. That is to say, these peo
ple are punished every year for believing as they do, to the extent
of $200,000, and to that extent, those of us who send our child
ren to these excellent common schools, become beneficiaries of the
410 Superior Court of Cincinnati.
Minors al. v. Board of Education of Cincinnati et al.
Catholic money. We pay for our privileges so much less than
they actually cost. Mercantile life is supposed to cultivate in some
a relish for hard bargains. But if it were a business matter, and
not a matter of religious concern, could business men be found
willing to exact such a pecuniary advantage as this ? I think it
would shock the secular conscience.
The authority of the Archbishop of Cincinnati was, however,
used in this connection, to show that these resolutions, if carried out,
would not be effectual to gather the children of Catholics into the
public schools, which they, in common with other tax-payers, sup
port. It appears that the Archbishop, like the plaintiffs, is not
satisfied with secular education in the schools. In principle, he
stands where they do, with the exception that they are in. posses
sion. Being out of possession, he would prefer to get out of the
public treasury the share of the school fund, proportioned to the
Catholic population, and apply it to the support of the parochial
schools with Catholic religious instruction. If the Catholics were
in possession, as the plaintiffs are, with the Douay version and
Catholic forms of worship, perhaps he might still be willing to
divide the money, and perhaps not, in which latter case he would
occupy about the same position now occupied by the plaintiffs in
this suit.
It is said that the Catholic clergy demand their share of the
fund, to be used in carrying on schools under their control. That
can not be done under the Constitution. But this affords no reason
why the Board of Education should not grant to the Catholic
people, what the Bill of Rights guarantees to every sect, that their
rights of conscience shall not be violated, and that they shall not
be compelled to attend any form of worship, or to maintain it
against their consent, or be compelled to submit to religious prefer
ences, shown by the government to other religious societies.
It is not for a court to anticipate, before judgment, that any
party will not be satisfied with what the law gives him, nor are
courts accustomed to withhold what is due because something else
is asked.
Another numerous class of heavy tax-payers, the Jews,
object to the old rule. But it is claimed on behalf of the plain
tiffs, ithat the Jews have met with something like a conversion,
Opinion of Judge Taft. 411
Minor et aL v. Board of Education of Cincinnati et al.
and have become reconciled to the New Testament. That
they held out for a while, but afterward came in, and there was no
further difficulty with them, and that their case need not to have
been further regarded. There is too much evidence of dissent on
their part, from the old rule, to permit us to conclude that they
have ever intended to waive their rights of conscience and of
religious liberty. Like the majority of us, the Jews have received
their faith from their ancestors, and according to that historic faith,
the assertion in the New Testament that Jesus of Nazareth is
God, is blasphemy against the God of Israel. If a Protestant
Christian would object to have the common schools daily opened
with the forms of worship peculiar to the Catholic Church, which
worships the same triune God with him, how much more serious
must be the objection of the Jew, to be compelled to attend, or
support, the worship of a being as God, whose divinity and super
natural history he denies ?
The truth in this matter undoubtedly is, that the Jews, like
many others, have found out that our common schools are munifi
cently endowed, and, in general, well conducted, so that the privi
lege of attending them is inestimable, and they have wisely concluded
to secure for their children the secular education of the common
schools, and attend to their religious nurture at home and in their
own organizations. A faith which had survived so much persecu
tion, through so many centuries, they may well have risked in the
common schools of Cincinnati, though at some cost of religious
feeling.
It is in vain to attempt to escape the force of the clauses of
the Bill of Rights by assuming that the Protestant Christian reli
gion was intended in the Bill of Rights, and that the sects of Pro
testant Christians only were, therefore, entitled to protection.
Between all forms of religious belief the State knows no differ
ence, provided they do not transgress its civil regulations a
mighty contrast to some times and some countries, which have
boasted of their religious liberality, because the ruling sects have
tolerated the dissenting minority, as a nuisance, which they have
magnanimously forborne to abate.
But the principle of equality of right, and nothing less than
that, is now well established in Ohio, if not in all the other Amer-
4 12 Superior Court of Cincinnati.
Minor et al. -v. Board of Education of Cincinnati ft al.
ican States, by the unequivocal language of our Constitution and
by judicial decisions.
In Bloom v. Richards, 2 Ohio St. R. 390-1, our Supreme
Court, by a unanimous opinion, in a case involving the validity of
a contract made on Sunday, said:
” But the Constitution of Ohio having declared that all men
have a natural and indefeasible right to worship Almighty God
according to the dictates of conscience ; that no human authority
can, in any case whatever, control or interfere with the rights of
conscience; that no man shall be compelled to attend, erect, or
support any place of worship, or to maintain any ministry against
his consent ; and that no preference shall ever be given by law to
any religious society or mode of worship, and no religious test shall
be required, as a qualification to any office of trust or profit, it
follows that neither Christianity, or any other system of religion is
a part of the law of this State.
We sometimes hear it stated, that all religions are tolerated in
Ohio, but the expression is not strictly accurate ; much less accu
rate is it to say, that one religion is a part of our law, and all others
only tolerated.
It is not by mere toleration that every individual here is pro
tected in his belief or disbelief. He reposes not upon the leniency
of government, or the liberality of any class or sect of men, but
upon his natural indefeasible rights of conscience which, in the lan
guage of the Constitution, are beyond the control or interference
of any human authority. We have no union of Church and State,
nor has our government ever been vested with authority to enforce
any religious observance simply because it is religious. Of course,
it is no objection, but, on the contrary, is a high recommendation
to a legislative enactment based upon justice or public policy, that
it is found to coincide with the precepts of a pure religion ; but the
fact is nevertheless true, that the power to make the law rests in
the legislative control over things temporal and riot over things
spiritual. Thus the statute upon which the defendant relies,
prohibiting common labor on the Sabbath, could not stand for
a moment as a law of this State, if its sole foundation was the
Christian duty of keeping that day holy, and its sole motive,
to enforce the observance of that duty. For no power over
things merely spiritual, has ever been delegated to the govern
ment, while any preference of one religion, as the statute would
give upon the above hypothesis, is directly prohibited by the Con
stitution. Acts, evil in their nature, or dangerous to the public
welfare, may be forbidden and punished, though sanctioned by one
Opinion of Judge Taft. 413
Minor et a!, -v. Board of Education of Cincinnati et al.
religion and prohibited by another; but this creates no preference
whatever, for they would be equally forbidden and punished if all
religions permitted them.
Thus no plea of religion could shield a murderer, a ravisher,
or a bigamist, for the community would be at the mercy of super
stition, if such crimes as these could be committed with impunity,
because sanctioned by some religious delusion.”
The same Court two years later, in McGatrick v. Wasson, 4
O. S. R. 5712, again by unanimous opinion said :
ct But was it a work of necessity within the meaning of the act ?
In answering this question, we must always keep in mind, that it is no
part of the object of the act to enforce the observance of a religious
duty. The act does not to any extent, rest upon the ground that it is
immoral or irreligious to labor on the Sabbath any more than upon
any other day. It simply prescribes a day of rest, from motives of
public policy and as a civil regulation ; and as the prohibition itself
is founded on principles of policy, upon the same principles certain
exceptions are made, among which are works of necessity and
charity. In saying this I do not mean to intimate, that religion
prohibits works of necessity or charity on the Sabbath, but merely
to show that the principles, upon which our statute rests, are wholly
secular, and that they are none the less so because they may hap
pen to concur with the dictates of religion. Thus the day of rest
prescribed by the statute, is the Christian Sabbath, yet so entirely
does the act rest upon grounds of public policy, that, as was said
in Bloom v. Richards^ 2 O. S. R. 391, 392, it would be equally con
stitutional and obligatory, did it name any other day, and it derives
none of its force from the fact that the day of rest is Sunday. For,
as was also said in that case, no power whatever is possessed by
the Legislature over things spiritual, but only over things temporal;
no power whatever to enforce the performance of religious duties,
simply because they are religious ; but, only within the limits of the
Constitution, to maintain justice and promote the public welfare.
Unless then, we keep constantly in mind that the act rests
upon public policy alone, we shall be in great danger of giving it a
wrong construction : and instead of reading it in the light of the
Constitution, which prohibits all religious tests and preferences,
find ourselves led away from its meaning, by the influence of our
own peculiar theological tenets.”
The framers of our last Constitution were jealous of the am
bition of sects. It forbids the imposition of their respective forms of worship on each other, and forbids that any one of them shall
have any exclusive right to, or control of, any part of the school
fund. Now, as they can not impose their respective forms of
worship upon each other, and can not divide the school fund, it
follows, that, while they may and ought to unite in the common
schools, they must separate in their worship, unless waiving their
religious differences, they agree to unite in their worship also. I
am very far from depreciating the history and the usefuluess of the
religious sects. They have roused the energies of nations to
heroic achievements ; and, beside cherishing earnest piety and
strong faith in God, they have organized efficient charities for the
poor and distressed. But they have not always been tolerant, and
it is still one of their characteristics to ignore the conscientious
scruples of each other.
Each sect feels a comfortable assurance that it is not mistaken
in its faith, and must be excused, if it can not appreciate the faith,
or want of faith, in others.
But nevertheless, the idea, that a man has less conscience
because he is a Rationalist, or a Spiritualist, or even an Atheist,
than the believer in any one of the accepted forms of faith, may be
current, but it is not a constitutional idea, in the State of Ohio.
No sect can, because it includes a majority of a community
or a majority of the citizens of the State, claim any preference
whatever. It can not claim that its mode of worship or its religion
shall prevail in the common schools. Nor does it make the case
any better, if several sects agree in a certain degree and kind of
religious instruction and worship, among themselves, though
together forming a large majority of the community or State. So
long as there are any, who do not believe in or approve of their
mode of religious worship or instruction, they can not insist that it
is not sectarian, or that any non-believing tax-payer shall be com
pelled to submit to it in the common schools.
While the Court will take cognizance of the existence
of the Christian religion and of the Protestant religion, it is
only for the purpose of preserving civil peace and order, and the
welfare of the State ; and for the same purpose, it will take cogni
zance of the existence of every sect. The State protects every
religious denomination in the quiet enjoyment of its own mode of
Opinion of Judge Taft. 415
Minor et al. <v. Board of Education of Cincinnati et aL
public worship. It protects them from blasphemy, when the pub
lic peace and order require it.
It is, therefore, an entire mistake, in my opinion, to assert,
that the Protestant Christian religion has been so identified with
the history and government of our State or country, that it is not
to be regarded as sectarian under our Constitution ; or, that, when
the Bill of Rights says that tc religion, morality and knowledge
being essential to good government,” it means the Protestant
Christian religion. That would be a preference, which the same
section expressly disclaims, and emphatically forbids. *
To hold otherwise, and that Protestant Christians are entitled
to any control in the schools, to which other sects are not equally
entitled, or that they are entitled to have their mode of worship
and their Bible used in the common schools, against the will of the
Board of Education, the proper trustees and managers of the
schools, is to hold to the union of Church and State, however we
may repudiate and reoroach the name. Nor is it to be presumed,
that the cause of genuine religion, or of the Bible, can be perma
nently advanced by a struggle for this kind of supremacy. The
government is neutral, and, while protecting all, it prefers none,
and it disparages none. The State, while it does not profess to
be Christian, exercises a truly Christian charity toward all. Its
impartial chanty extends to all kinds of Protestants, Roman Catho
lics, Jews and Rationalists alike, and covers them with its mantle
of protection and encouragement ; and no one of them, however
numerous, can boast of peculiar favor with the State.
Nothing but the severset experiences of religious persecution
in other countries, and in other times, could have planted liberty
of religious opinion so deeply and so ineradicably in the American
State governments. It was not realized under the Colonial govern
ment, which, though far removed from, were still closely allied to,
the laws and religious institutions of the mother country. Roger
Williams was greatly in advance of his time, and seemed to com
prehend the principle of religious liberty. But even he dared not
to claim its full realization, and what he claimed was not allowed.
<{ There goes many a ship to sea,” said he, ” with many hun
dred souls in one ship, whose weal and woe is common, and is a true
4i 6 Superior Court of Cincinnati.
Minor et al. t>. Board of Education of Cincinnati ct at.
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.”
There is no more striking evidence of the advance which has
been made in religious liberty, since the time of Roger Williams, than
is to be found in the American State Constitutions of the present
day, and in the most intelligent comments upon them by approved
writers and jurists. The ideal is absolute equality before the law,
of all religious opinions and sects, provided they do not infringe the
laws enacted purely for civil government, with no symbols of the
superiority of any faith over others, upheld by the power of the
State. If this ideal has not been practically reached in all the older
States, it may be ascribed to the fact that in several of them, as in
Massachusetts and Connecticut, an established church was pre
served till a comparatively recent period. And it is to be borne in
mind that the adjudications of the Courts in a State with a church
establishment maintained by law, are not applicable to the condi
tion of religious equality existing in Ohio.
Mr. Cooley, in his valuable work, recently published, on Con
stitutional Limitations, discusses, with great intelligence and force,
the subject of religious liberty and the rights of conscience, under
the American State Constitutions. His opinion is strongly expressed
in favor of secular instruction in the schools. In the course of
the discussion of the American Constitutions on this subject, and
of the adjudication thereunder, he makes an interesting statement
of things not permitted under American Constitutions, in the
interest of religious liberty and rights of conscience. He says :
” Those things which are not lawful under any of the Ameri
can Constitutions may be stated thus :
” I. Any law respecting an establishment of religion. The
Legislatures have not been left at liberty to effect a union of
Church and State, or to establish preferences by law in favor of
any one religious denomination or mode of worship, There is
Opinion of Judge Taft. 417
Minor et ah -v. Board of Education of Cincinnati ct al.
no religious liberty where any one sect is favored by the State and
given an advantage by law over other sects. Whatever establishes
a distinction against one class or sect is, to the extent to which the
distinction operates unfavorably, a persecution ; and if based on
religious grounds, is religious persecution.
” It is not toleration which is established in our system, but
religious equality.
u 2. Compulsory support, by taxation or otherwise, of relig
ious instruction. Not only is no one denomination to be favored
at the expense of the rest, but all support of religious instruction
must be entirely voluntary.”
This great principle of equality in the enjoyment of religious
liberty, and the faithful preservation of the rights of each individ
ual conscience is important in itself, and is essential to religious
peace and temporal prosperity, in any country under a free govern
ment. But in a city and State whose people have been drawn
from the four quarters of the world, with a great diversity of
inherited religious opinions, it is indispensable. When the Board of
Education, therefore, which represents the civil power of the State
in the schools, finds objection made to the use of the Protestant Bible
and Protestant singing of Protestant hymns, on conscientious
grounds, and concludes to dispense with the practice in the schools,
it is no just ground to charge on the Board hostility to the Bible,
or to the Protestant religion, or to religion in general. The Bible
is not banished, nor is religion degraded or abused. The Board
have simply aimed to free the common schools from any just con
scientious objections, by confining them to secular instruction, and
moral and intellectual training. This, in my opinion, was, under
the circumstances, just, and, under the Constitution of Ohio, a
duty which they could not omit without violating the rights of
conscience of those who, on conscientious grounds, objected to the
practice under the old rule.
On the whole case, my conclusions are that the Board of Educa
tion had the power to pass both the first and the second of these Reso
lutions, and whether expedient or inexpedient, this Court has no lawful
authority to restrain it from acting under either of them ; that, upon
4i 8 Superior Court of Cincinnati.
Minor et al. <v. Board of Education of Cincinnati et al.
the pleadings and the evidence in the case, the Board, in adopting the
first of these resolutions^ acted with a justice and liberality warranted
by the Bill of Rights, and made necessary by the facts ; and that, in
adopting the second, it performed a duty imposed upon it by the lan
guage and the spirit of the Constitution of Ohio.
JUDGMENT.
February 18, 1870.
JOHN D. MINOR AND OTHERS
Superior Court of
THE BOARD OF EDUCATION OF CINCINNATI
AND OTHERS
Cincinnati.
This cause was heard upon the pleadings, testimony, and argu
ments of the counsel of all the parties, and the Court having duly
considered thereof, finds that the resolutions passed by the said
Board of Education on the ist day of November, A. D. 1869, and
which are set forth in the petition, were passed without warrant
or authority in law, and are in violation of the provisions of the
seventh section in the first article or the Bill of Rights in the
Constitution of this State, and are an abuse of the powers of said
Board, and are, therefore, declared to be null and void ; and the plain
tiffs, as taxpayers of the City of Cincinnati, are entitled in behalf of
said city, as well as in their own right, to the relief sought in their
petition ; to which the City of Cincinnati and said Board, and the
members, defendants, who voted for said resolutions, except.
It is therefore adjudged and ordered, that the restraining order
heretofore entered in this action be made perpetual, and that the City
of Cincinnati, and said Board of Education, and the members and
officers thereof, and teachers, and all other persons acting in aid or
assistance of the said Board, be and are each and all commanded to
refrain from promulgating, or in any wise, directly or indirectly,
enforcing the said resolutions set forth in the petition as passed
by said Board, on the ist day of November, A. D. 1869, or any
other measures of the like nature or effect, and are enjoined not
to give or permit any force or effect to be given to said resolu
tions in the common schools of said city; and that the costs of
this action be paid by the City of Cincinnati.
42 o judgment.