Free Thinkers Continue Appeal from Religious Instruction Ruling

(Jewish Daily Bulletin)

The Court of Appeals yesterday permitted John C. Mahon, counsel for Joseph Lewis, president of the Free Thinkers’ Society, to continue his argument in appeal from the unanimous decision of the Appellate Division, Third Department, which held that the school authorities of White Plains were within their rights in excusing public school pupils for half an hour a week during school hours for religious instruction in outside buildings.

Mr. Mahon admitted that he had not received the customary permission to appeal for a unanimous decision of the Appellate Division, and Chief Judge Benjamin N. Cardoza announced the court would consider the question of receiving the appeal. Mr. Mahon declared he had a constitutional right to make the appeal to the highest state court. He was interrogated several times by Judge Lehman, Pound and Crane on various points he raised.

Ernest E. Cole, head of the legal department of the State Department of Education, denied that there is a constitutional question involved in Mr. Mahon’s appeal. Mr. Mahon, he said, could not appeal from a unanimous decision on constitutional grounds “since the decision from which the appeal is taken is based on other grounds, and the appeal will not lie.”

The regulation complained of in the case, Mr. Cole contended, did not violate any unconstitutional provision. Charles N. Tuttle, who represented the Greater New York Federation of Churches and the New York State Sunday School Association, declared that school boards had the right to dismiss students for periods of religious instruction.

Mr. Tuttle said that he was not charging the federation for his services but was giving them because of the “merits of the case.” He said that at the time he was appointed United States Attorney for the Southern District of New York he obtained permission from Attorney General Sargent to appear in this case.