O'HARA, J. (concurring in result).
Judge BRENNAN and I concur only in the result reached by Judge BRONSON. We are not prepared to endorse his opinion.
We feel the basic point involved here is not whether the book in question is per se obscene or pornographic as those terms have been judicially defined by the United States Supreme Court. This is made clear by the following finding of the trial judge.
"The issues in this case have to do solely with the doctrine of separation of religion and state, and there is nothing before the court on which to rule concerning mere obscenity, pornography * * *."
There is no doubt, as the trial court noted, that certain characters in the novel express sentiments that are derogatory of the religious beliefs of a very sizable segment of our society. However, the novel in question is merely listed as one of a
This, of course, is precisely the point. Writings, contemporary as well as of ages past, have attributed to characters beliefs and expressions highly antagonistic to established religious beliefs. Manifestly, many of these writings have attained classical status. As we view the constitutional test, a public educational institution cannot espouse as part of its teaching program such expressions of belief pro or contra as representative of the beliefs of the institution. In the presentation of reading material, the public institution is well within its teaching function to list the particular books the faculty regards as valuable to the full exposure of the student to conflicting views of religious beliefs. To advocate the views doctrinally as those of the institution is quite another thing. It is not alleged that defendant in this case espoused any anti-religious views as opposed merely to making available course material.
We find no violation of the "establishment" clause of the First Amendment.
The judgment granting mandamus against defendant school system is reversed. The case is remanded to the trial court for entry under directions to grant defendant motion for summary judgment.
V.J. BRENNAN, J., concurred.
On March 24, 1971, plaintiff, Bruce Livingston Todd, filed a complaint for a writ of mandamus against the defendant, Rochester
The gravamen of plaintiff's complaint was that Slaughterhouse-Five "contains and makes reference to religious matters" and, therefore, "the use of such book as a part or in connection with any course of instruction by a public school district or system is illegal and contrary to the laws of the land; namely, the First and Fourteenth Amendments of the United States Constitution".
On March 31, 1971, defendant answered plaintiff's complaint. In its pleading the Rochester Community Schools affirmatively stated that the novel at issue, along with several others, "is used in connection with a general secular course of instruction entitled `Current Literature' and the fact that the same might incidentally refer to religious
Subsequent to answering, defendant filed a motion for summary judgment of no cause of action on the basis that there was no genuine issue as to any material fact and that the Rochester Community School District was entitled to judgment as a matter of law. GCR 1963, 117.2(3). A hearing on this motion was held on April 7, 1971, before the Honorable Arthur E. Moore, Circuit Judge for the County of Oakland. At this time the parties stipulated to allow the novel into evidence, formally waived pretrial, and agreed to accept the court's decision predicated upon the pleadings, briefs, and motions, with the book itself constituting the sole evidence.
On May 13, 1971, the court filed a nine-page opinion granting plaintiff's requested relief "if necessary". On May 20, 1971, in the trial judge's temporary absence, the Presiding Judge of the Oakland County Circuit Court entered a judgment
On June 18, 1971, defendant filed a claim of appeal as a matter of right. On July 16, 1971, this Court granted the American Civil Liberties Union of Michigan permission to file a brief amicus curiae.
After thorough study of the proceedings below, including a careful scrutiny of Slaughterhouse-Five, and aware that some of the legal questions suggested by these proceedings have apparently never been squarely passed upon by any other court in this country, we are constrained to reverse the trial court's judgment and permanently dissolve the previously issued judgment of mandamus. The reasons for our actions follow.
Initially we consider what we believe should have been the proper disposition of this matter in the court below. As previously indicated on March 31, 1971, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(3). Technically, defendant's requested relief was more properly predicated upon the authority of GCR 1963, 117.2(1). For reasons we are about to delineate, we hold that even if all the factual allegations
Our Court considered the nature of GCR 1963, 117.2(1) in Major v Schmidt Trucking Co, 15 Mich.App. 75 (1968). In Major, Judge CHARLES LEVIN, writing for a unanimous panel, observed that:
"A motion under GCR 1963, 117.2(1) asserts that the opposing party's pleading fails to state a claim upon which relief can be granted. The motion may be granted only where it appears on the face of the challenged pleading that the pleader cannot recover." Major, supra, at 78.
See, also, Bloss v Williams, 15 Mich.App. 228, 231 (1968); Johnston's Administrator v United Airlines, 23 Mich.App. 279, 286 (1970). The fact that defendant chose to support its motion by appending an affidavit is perfectly proper inasmuch as the combining of subparts of GCR 1963, 117 has been approved. Durant v Stahlin, 375 Mich. 628, 644 (1965). But it was not necessary for defendant to affix an affidavit with its motion for summary judgment to prevail inasmuch as plaintiff's complaint pleads an alleged cause of action heretofore unknown to our law.
Pursuant to GCR 1963, 820.1(1) and (7) we grant defendant's requested summary judgment of no cause of action and reverse the trial court's judgment of mandamus.
Plaintiff's complaint specifically pleads only that Slaughterhouse-Five is used in a public school and "contains and makes reference to religious matters". We have been cited to no authority, nor has our own research uncovered any, which holds that any portion of any constitution is violated simply because a novel, utilized in a public school "contains and makes reference to religious matters".
If plaintiff's contention was correct, then public school students could no longer marvel at Sir Galahad's saintly quest for the Holy Grail, nor be introduced to the dangers of Hitler's Mein Kampf nor read the mellifluous poetry of John Milton and John Donne. Unhappily, Robin Hood would be forced to forage without Friar Tuck and Shakespeare would have to delete Shylock from The Merchant of Venice. Is this to be the state of our law? Our Constitution does not command ignorance; on the contrary, it assures the people that the state may not relegate them to such a status and guarantees to all the precious and unfettered freedom of pursuing one's own intellectual pleasures in one's own personal way.
We hasten to point out that plaintiff did not allege that the Rochester public schools were intentionally taking action which was derogatory to Christianity. Nor did plaintiff aver that defendant was attempting to "establish" any specific religious sect in preference over another; nor one over all others; nor none at all. Had plaintiff's complaint suggested such a state of affairs, the question before the Court would be substantially different. But in this case the evidence is undisputed that the novel in question, and the Bible, were being utilized as literature. There is no allegation nor proof that Slaughterhouse-Five was being taught subjectively, or that the religious or anti-religious
Portions of the trial court's rulings were as follows:
"40. It is hereby ordered that the book, `Slaughterhouse-Five or The Children's Crusade', be forthwith removed from the defendant's school library.
"41. It is further ordered that the book may not be fostered, promoted or recommended for use in the defendant's school system; and defendant is ordered to desist accordingly.
"42. It is further ordered that the book is banned from the school library only so long as is necessary to prevent its use as promoted or recommended reading material in the courses of study in defendant's school system.
"43. The book may be returned to the library shelves of the defendant school if and when the defendant has definitely and conclusively withdrawn and desisted from the promotion, recommendation and use of the book in educational courses of the defendant school system. This mandamus order may then be amended for that specific purpose on appropriate motion of counsel."
In rendering his decision the trial court relied solely upon Abington School District v Schempp, 374 U.S. 203; 83 S.Ct. 1560; 10 L Ed 2d 844 (1963). Schempp held that a statute requiring daily Bible reading without comment in public schools violated the First Amendment, even though participation by each pupil was voluntary. Schempp is totally dissimilar to the case at bar. Schempp turned upon the fact that reciting a prayer in public schools had no connection whatsoever with secular education. Saying the prayer was an end in itself. Such conduct had as its primary purpose the advancement of religion; the relationship between
"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause
See, also, Board of Education of Central School District No 1 v Allen, 392 U.S. 236, 243; 88 S.Ct. 1923, 1926; 20 L Ed 2d 1060, 1065 (1968); Walz v Tax Commission of the City of New York, 397 U.S. 664; 90 S.Ct. 1409; 25 L Ed 2d 697 (1970). Mr. Justice Brennan's concurring opinion in Schempp is highly instructive as to the proper interpretation of that decision:
"The holding of the Court today plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history. Indeed, whether or not the Bible is involved, it would be impossible to teach meaningfully many subjects in the social sciences or the humanities without some mention of religion. To what extent, and at what points in the curriculum, religious materials should be cited are matters which the courts ought to entrust very largely to the experienced officials who superintend our Nation's public schools. They are experts in such matters, and we are not. We should heed Mr. Justice Jackson's caveat that any attempt by this Court to announce curricular standards would be `to decree a uniform, rigid and, if we are consistent, an unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes.' * * * " (Emphasis supplied.) Abington School District v Schempp, supra, at 300-301 (Brennan, J., concurring).
Our scrutiny of Zorach v Clauson, 343 U.S. 306; 72 S.Ct. 679; 96 L Ed 954 (1952); Illinois ex rel McCollum v Champaign County Board of Education,
Obscenity, although not raised in the pleadings, and declared not to be at issue in the trial court's June 9, 1971 judgment, is pervasive in the lower court's opinion.
In his findings of fact, the trial judge did indeed cite many words which, if standing alone, would offend some person's sensibilities. Yet each and every example advanced by the trial court was taken totally out of context. This is constitutional error. Ackerman v United States, 293 F.2d 449 (CA 9, 1961); Haldeman v United States, 340 F.2d 59 (CA 10, 1965); People v Stabile, 58 Misc.2d 905; 296 N.Y.S.2d 815 (1969). To be constitutionally obscene, the matter scrutinized must be judged in its entirety. Roth v United States, 354 U.S. 476; 77 S.Ct. 1304; 1 L Ed 2d 1498 (1957); Excellent Publications, Inc v United States, 309 F.2d 362 (CA 1, 1962); State v Hudson County News Co, 41 N.J. 247; 196 A.2d 225 (1963). As amicus curiae correctly points out, even the Bible may be considered profane or vulgar if certain passages are considered
The Supreme Court has clearly held that it is incumbent upon a court to employ a constitutional test to determine whether a given work is "obscene" in the legal sense. Memoirs v Massachusetts, 383 U.S. 413; 86 S.Ct. 975; 16 L Ed 2d 1 (1966). In Jacobellis v Ohio, 378 U.S. 184; 84 S.Ct. 1676; 12 L Ed 2d 793 (1964), the Court eloquently articulated the dangers of a Balkanized obscenity standard. Neither the trial court nor this Court has any legal prerogative to refuse to follow the rulings of the United States Supreme Court when it decides a question which requires interpretation of the Federal Constitution. Scholle v Secretary of State, 360 Mich. 1 (1960); Union Central Life Insurance Co v Peters, 361 Mich. 283 (1960). See, also, People v Gonzales, 356 Mich. 247, 262-263 (1959); People v Temple, 23 Mich.App. 651, 661 (1970).
Although the trial court did not expressly rule that Slaughterhouse-Five was obscene, his June 9, 1971 judgment strongly suggests that possibility. We are constrained to hold that Slaughterhouse-Five is clearly not obscene under present constitutional tests. Roth v United States, supra; Jacobellis v Ohio, supra; Redrup v New York, 386 U.S. 767; 87 S.Ct. 1414; 18 L Ed 2d 515 (1967); People v Wasserman, 27 Mich.App. 16 (1970); People v Billingsley, 20 Mich.App. 10 (1969); Wayne County Prosecutor v Doerfler, 14 Mich.App. 428 (1968).
Courts cannot permit themselves the luxury of refusing to adhere to a constitutional standard of review. When a court momentarily forgets this fact, as we did in Grand Rapids City Attorney v Bloss, 17 Mich.App. 318 (1969), a higher court usually terminates this judicial forgetfulness. Bloss
Judges are mortal and therefore are heir to the delightful differences which make up the human species. Nevertheless, when passing upon an alleged obscenity issue, we must strive to put aside our personal predilections and strictly adhere to the authoritative United States Supreme Court decisions.
In Redrup, supra, the Court found the paperback books Lust Pool and Shame Agent not to be obscene. We believe that it is ludicrous to consider Slaughterhouse-Five in the same literary niche as Lust Pool and Shame Agent. If the latter are not convicted because of their alleged profanity, then the former should never even stand trial. Slaughterhouse-Five is Sunday school reading compared to these paperbacks. We do not wish to demean Mr. Vonnegut by making such ridiculous comparisons. That he is a serious writer has been attested to by those whose literary credentials are more impressive than our own.
"Obscenity" is a mercurial matter. As Mr. Justice Harlan recently said for the Court in Cohen v California, 403 U.S. 15, 25; 91 S.Ct. 1780, 1788; 29 L Ed 2d 284, 294 (1971):
"[I]t is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."
Defendant and amicus curiae urge that the real issue underlying this case is that a circuit judge, or any government official, has no lawful right to impose his own particular value judgments on our citizenry in matters which are traditionally protected by the penumbra of the First Amendment. They argue that that, in fact, is what happened here and meticulously cite the trial record for factual support. For the reasons outlined below, we entertain no doubt that defendant and amicus curiae are legally correct and that the trial court abused its discretion in entering this traditionally sacred area.
One of the reasons that our constitutions have wisely precluded sovereign interference with an individual's right to read, think, speak, observe, and pray as he desires is the fact that these concepts are so arbitrary and diverse that they are foreign to standardization and any possible test of right-wrong. Government has no legitimate interest in controlling or tabulating the human mind nor the fuel that feeds it.
"The court did read the book as requested for determination of factual matters and issues of law alike, and unfortunately did thus waste considerable time. At points, the court was deeply disgusted. How any educator entrusted during school hours with the educational, emotional and moral welfare and healthy growth of children could do other than reject such cheap, valueless reading material, is incomprehensible. Its repetitious obscenity and immorality, merely degrade and defile, teaching nothing. Contemporary literature, of real educational value to youth abounds, contains scientific, social and cultural facts, of which youth need more to know, today.
"Certainly, it is unnecessary for any school system to search out and select obscenity, pornography, or deviated immorality in order to teach modern literature.
"Modern desire for complete licentious freedom has evidently led some educators into the fallacy that degradation of subject matter in reading and thought, is a necessary part of freedom in modern education. Does the modern trend of education permit mental prostitution, and encourage mental deviation? If so, this is a sad distortion of educational purpose."
While the May 11, 1971 opinion was subsequently superseded by a later one, the former is instructive insomuch as it allows this Court the opportunity to follow the trial judge's judicial thought process. Clearly, the trial judge found Slaughterhouse-Five to be a "bad" book, totally worthless and utterly lacking in any merit, literary or otherwise. But as Shakespeare reminds us in language antedating almost all of our sacred precedent, "There is nothing either good or bad, but thinking makes it so". (Hamlet, Act II, Scene 2, line 259). This Court cannot, in good conscience, nor in adherence to our constitutional oath of office, allow a non-educational public official the right, in absence of gross constitutional transgressions, to regulate the reading
The reasons for such a philosophy are basic to the American system of jurisprudence. Judges pass on the law not upon morals. It is, then, perhaps ironic that the most able articulation of judicial non-intervention in matters of conscience and personal conviction was penned by the distinguished English playwright Robert Bolt. In A Man for All Seasons, Sir Thomas More, the sacred ancestor of our judiciary, is infused by Mr. Bolt with the following language:
"More: * * * The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.
"Roper: Then you set man's law above God's!
"More: No, far below; but let me draw your attention to a fact — I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God * * *." A Man for All Seasons, 37 (Vintage Books, N.Y., 1960).
What does the law say when it speaks to this precise issue? No American jurist ever stated the basic premise better than Mr. Justice Jackson in his now classic opinion in West Virginia State Board of Education v Barnette, 319 U.S. 624, 642; 63 S.Ct. 1178, 1187; 87 L Ed 1628, 1639 (1943):
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion * * *."
Turning again for guidance to Mr. Justice Jackson,
"But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish."
We are concerned that in this case the trial court, in attempting to adjudicate this matter, substituted its own judgment of what is "right" and "moral" for that of the student, the teacher,
It is the trial court's right to select the reading matter which he personally consumes. That is a matter purely for his own conscience, preference and appetite. On the other hand, the judicial garb should never be mistaken for the accoutrements of a censor and the black robes of the trial court may not exclude, from public school students, the light of ideas — irrespective of their varied hues. See American Bar Association "Statement on the Freedom to Read", reprinted in The First Freedom,
The Supreme Court has clearly indicated that book censorship is an odious practice. In Hannegan v Esquire, Inc, 327 U.S. 146, 157-158; 66 S.Ct. 456, 462; 90 L Ed 586, 593 (1946), the Court observed:
"Under our system of government there is an accommodation for the widest varieties of tastes and ideas. What is good literature, what has educational value, what is refined public information, what is good art, varies with individuals as it does from one generation to another. There doubtless would be a contrariety of views concerning Cervantes' Don Quixote, Shakespeare's Venus and Adonis or Zola's Nana. But a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system." (Emphasis supplied.)
The Court has characterized the classroom as "`the marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" Keyishian v Board of Regents, supra, 385 US at 603; 87 S Ct at 683; 17 L Ed 2d at 640. See, also, Tinker v Des Moines Community School District, 393 U.S. 503, 512; 89 S.Ct. 733, 739; 21 L Ed 2d 731, 741 (1969).
Vonnegut's literary dwellings on war, religion, death, Christ, God, government, politics, and any other subject should be as welcome in the public schools of this state as those of Machiavelli, Chaucer, Shakespeare, Melville, Lenin, Hitler, Joseph McCarthy, or Walt Disney. The students of Michigan
Reversed. Summary judgment of no cause of action is entered in this Court in favor of defendant Rochester Community Schools.
No costs, a public question being involved.
"Now comes, Bruce Livingston Todd, a resident of the County of Oakland, residing at 753 Charlesina, Oakland Township, Oakland County, Michigan, and complaint [sic] of the Rochester Community Schools, a body corporate, defendant herein, named pursuant to RJA 600.4401 and GCR  710, as follows:
"1) One of plaintiff's children is lawfully enrolled in the Rochester Community Schools and is attending the prescribed classes of instruction pursuant to the curriculum requirements and specifications.
"2) As a part of said curriculum is a course of study referred to as `Current Literature'.
"3) As a part of said `Current Literature' course of instruction is the offered reading of a book titled, `Slaughterhouse-Five' or `The Children's Crusade' believed to have been authored by one Kurt Vonnegut, Jr. and published by Dell Publishing Company, Inc. of New York, New York.
"4) Said book contains and makes reference to religious matters.
"5) The use of such book as a part of or in connection with any course of instruction by a public school district or system is illegal and contrary to the laws of this land; namely, the First and Fourteenth Amendments of the Constitution of the United States, pursuant to the determinations of the Supreme Court of the United States, to-wit: Engel v Vitale, 370 U.S. 421; 82 S.Ct. 1261; 8 L Ed 2d 601 (1962), and DeSpain v DeKalb County Community School District, 384 F.2d 836 (1967), et al.
"6) Plaintiff herein has often requested of defendant herein that said book, to-wit: `Slaughterhouse-Five' or `The Children's Crusade', be withdrawn from and as a part of the curriculum offered by defendant has failed and refused to do so, and defendant continues to employ said book as a part of its offered course of instruction contrary to the laws of this land.
"Wherefore, plaintiff prays that a writ of mandamus be issued adjudging said book, `Slaughterhouse-Five' or `The Children's Crusade' to be unlawful and unfit for use as a part of a course of instruction offered by defendant, The Rochester Community Schools; or
"In the Alternative
"That this court issue its order to show cause pursuant to the petition and affidavit of Bruce Livingston Todd, plaintiff herein, the originals of which are attached hereto and made a part of this complaint and that said matter be brought on for an immediate hearing and determination by this honorable court."
"* * * What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. * * *" 374 US at 294-295; 83 S Ct at 1609-1610; 10 L Ed 2d at 899.
"The holding of the Court today plainly does not foreclose teaching about the Holy Scriptures or about the differences between religious sects in classes in literature or history. Indeed, whether or not the Bible is involved, it would be impossible to teach meaningfully many subjects in the social sciences or the humanities without some mention of religion. To what extent, and at what points in the curriculum, religious materials should be cited are matters which the courts ought to entrust very largely to the experienced officials who superintend our Nation's public schools. They are experts in such matters, and we are not. We should heed Mr. Justice Jackson's caveat that any attempt by this Court to announce curricular standards would be `to decree a uniform, rigid and, if we are consistent, an unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes.' * * *" 374 US at 300-301; 83 S Ct at 1612-1613; 10 L Ed 2d at 902-903.
"Addressing his editor, Seymour Lawrence, Vonnegut says: `Sam — here's the book. It is so short and jumbled and jangled, Sam, because there is nothing intelligent to say about a massacre.'" Saturday Review, p 25 (March 27, 1969).
"The whole thrust of the First Amendment is to shelter expression from the value judgments of those in power; when any judge or prosecutor attempts to assess speech, he must do so in his own coin — a coin that is by definition suspect."