25

the proceedings. The armed forces have commissioned chaplains from early days.2 They conduct the public services in accordance with the liturgical requirements of their respective faiths, ashore and afloat, employing for the purpose property belonging to the United States and dedicated to the services of religion." Under the Servicemen's Readjustment Act of 1944, eligible veterans may receive training at government expense for the ministry in denominational schools.28 The schools of the District of Columbia have opening exercises which "include a reading from the Bible without note or comment, and the Lord's prayer." 29

In the United States Naval Academy and the United States Military Academy, schools wholly supported and completely controlled by the federal government, there are a number of religious activities. Chaplains are attached to both schools. Attendance at church services on Sunday is compulsory at both the Military and Naval Academies.30 At West Point the Protestant services are

25 Rules of the House of Representatives (1943) Rule VII; Senate Manual (1947) 6, fn. 2.

26 3 Stat. 297 (1816).

27 Army Reg., No. 60-5 (1944); U. S. Navy Reg. (1920), ch. 1, § 2 and ch. 34, §§ 1-2.

28 58 Stat. 289.

29 Board of Education Rules, ch. VI, § 4.

30 Reg. for the U. S. Corps of Cadets (1947) 47: "Attendance at chapel is part of a cadet's training; no cadet will be exempted. Each cadet will receive religious training in one of the three principal faiths: Catholic, Protestant, or Jewish." U. S. Naval Academy Reg., Art. 4301 (b): "Midshipmen shall attend church services on Sundays at the Naval Academy Chapel or at one of the regularly established churches in the city of Annapolis."

Morning prayers are also required at Annapolis. U. S. Naval Academy Reg., Art. 4301 (a): "Daily, except on Sundays, a Chaplain will conduct prayers in the messhall, immediately before breakfast." Protestant and Catholic Chaplains take their turn in leading these prayers.

held in the Cadet Chapel, the Catholic in the Catholic Chapel, and the Jewish in the Old Cadet Chapel; at Annapolis only Protestant services are held on the reservation, midshipmen of other religious persuasions attend the churches of the city of Annapolis. These facts indicate that both schools since their earliest beginnings have maintained and enforced a pattern of participation in formal worship.

31

With the general statements in the opinions concerning the constitutional requirement that the nation and the states, by virtue of the First and Fourteenth Amendments,31 may "make no law respecting an establishment of religion," I am in agreement. But, in the light of the meaning given to those words by the precedents, customs, and practices which I have detailed above, I cannot agree with the Court's conclusion that when pupils compelled by law to go to school for secular education are released from school so as to attend the religious classes, churches are unconstitutionally aided. Whatever may be the wisdom of the arrangement as to the use of the school buildings made with the Champaign Council of Religious Education, it is clear to me that past practice shows such cooperation between the schools and a non-ecclesiastical body is not forbidden by the First Amendment. When actual church services have always been permitted on government property, the mere use of the school buildings by a non-sectarian group for religious education ought not to be condemned as an establishment of religion. For a non-sectarian organization to give the type of instruction here offered cannot be said to violate our rule as to the establishment of religion by the state. The prohibition of enactments respecting the establishment of religion do

31 The principles of the First Amendment were absorbed by the Fourteenth Amendment. Pennekamp v. Florida, 328 U. S. 331,

not bar every friendly gesture between church and state. It is not an absolute prohibition against every conceivable situation where the two may work together, any more than the other provisions of the First Amendment-free speech, free press-are absolutes.32 If abuses occur, such as the use of the instruction hour for sectarian purposes, I have no doubt, in view of the Ring case, that Illinois will promptly correct them. If they are of a kind that tend to the establishment of a church or interfere with the free exercise of religion, this Court is open for a review of any erroneous decision. This Court cannot be too cautious in upsetting practices embedded in our society by many years of experience. A state is entitled to have great leeway in its legislation when dealing with the important social problems of its population.33 A definite violation of legislative limits must be established. The Constitution should not be stretched to forbid national customs in the way courts act to reach arrangements to avoid federal taxation." Devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with accepted habits of our people. This is an instance where, for me, the history of past practices is determinative of the meaning of a constitutional clause, not a decorous introduction to the study of its text. The judgment should be affirmed.

32 See Whitney v. California, 274 U. S. 357, 371; Reynolds v. United States, 98 U. S. 145, 166; Cantwell v. Connecticut, 310 U. S. 296, 303; Cox v. New Hampshire, 312 U. S. 569, 574, 576; Chaplinsky v. New Hampshire, 315 U. S. 568, 571; Prince v. Massachusetts, 321 U. S. 158.

33 Cf. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28.

34 Higgins v. Smith, 308 U. S. 473; Helvering v. Clifford, 309 U. S. 331; Comm'r v. Tower, 327 U. S. 280; Lusthaus v. Comm'r, 327 U. S. 293.

Syllabus.

IN RE OLIVER.

CERTIORARI TO THE SUPREME COURT OF MICHIGAN.

No. 215. Argued December 16, 1947.-Decided March 8, 1948.

In obedience to a subpoena, petitioner appeared as a witness before a Michigan circuit judge who was then conducting, in accordance with Michigan law, a secret "one-man grand jury" investigation of crime. After petitioner had given certain testimony, the judgegrand jury, acting in the belief that his testimony was false and evasive (which belief was based partly on testimony given by at least one other witness in petitioner's absence), summarily charged him with contempt, convicted him, and sentenced him to sixty days in jail. These proceedings were secret and petitioner had no opportunity to secure counsel, to prepare his defense, to crossexamine the other grand-jury witness, or to summon witnesses to refute the charge against him. Held:

1. The secrecy of petitioner's trial for criminal contempt violated the due process clause of the Fourteenth Amendment. Pp. 266-273, 278.

(a) The reasons advanced to support the secrecy of grandjury investigative proceedings do not justify secrecy in the trial of a defendant accused of an offense for which he may be fined or sent to jail. Pp. 264-266.

(b) An accused is entitled to a public trial, at least to the extent of having his friends, relatives and counsel present-no matter with what offense he may be charged. Pp. 271-272.

2. The failure to afford petitioner a reasonable opportunity to defend himself against the charge of giving false and evasive testimony was a denial of due process of law. Pp. 273–278.

(a) As a minimum, due process requires that an accused be given reasonable notice of the charge against him, the right to examine the witnesses against him, the right to testify in his own behalf, and the right to be represented by counsel. P. 273.

(b) The circumstances of this case did not justify denial of these rights on the ground that the trial was for contempt of court committed in the court's actual presence. Ex parte Terry, 128 U. S. 289, distinguished. Pp. 273–278.

318 Mich. 7, 27 N. W. 2d 323, reversed.

Opinion of the Court.

333 U.S.

In a habeas corpus proceeding, the State Supreme Court denied petitioner's release from imprisonment upon a sentence for contempt. 318 Mich. 7, 27 N. W. 2d 323. This Court granted certiorari. 332 U. S. 755. Reversed, p. 278.

Osmond K. Fraenkel and William Henry Gallagher argued the cause for petitioner. With them on the brief were Louis M. Hopping and Elmer H. Groefsema.

Edmund E. Shepherd, Solicitor General, argued the cause for the State of Michigan, respondent. With him on the brief were Eugene F. Black, Attorney General, H. H. Warner and Daniel J. O'Hara, Assistant Attorneys General.

Harry G. Gault and Wilber M. Brucker filed a brief for the State Bar of Michigan as amicus curiae.

Patrick H. O'Brien and Erwin B. Ellmann filed a brief for the Detroit Chapter, National Lawyers Guild, as amicus curiae, urging reversal.

MR. JUSTICE BLACK delivered the opinion of the Court. A Michigan circuit judge summarily sent the petitioner to jail for contempt of court. We must determine whether he was denied the procedural due process guaranteed by the Fourteenth Amendment.

In obedience to a subpoena the petitioner appeared as a witness before a Michigan circuit judge who was then conducting, in accordance with Michigan law, a "oneman grand jury" investigation into alleged gambling and official corruption. The investigation presumably took place in the judge's chambers, though that is not certain.