Sweatt v. Painter Motion for Leave to File and Brief Amicus Curiae

    IN  THE

Supreme Court of the United States
October Term, 1949

No. 44

HEMAN MARION SWEATT,

v.
Petitioner,

THEOPHILIS SHICKEL PAINTER et at.,
Respondents.

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE AND BRIEF AMICUS CURIAE OF THE 
FEDERAL COUNCIL OF THE CHURCHES OF 

CHRIST IN AMERICA

Charles II. T uttle,
Counsel for The Federal Council of the 

Churches of Christ in America,
15 Broad Street,
New York 5, N. Y.

«̂ |g|||^>307 BAR PRESS INC., 54  LA FA Y E TTE  ST ., N E W  Y O R K  13 -----W A . 5 - 3 4 3 2  -3



IN  THE

Supreme Court of the United States
October Term, 1949

No. 44

HEMAN MARION SWEATT,
Petitioner,

v.
THEOPHILIS SHICKEL PAINTER et al,

Respondents.
On Petition for Writ of Certiorari to the 

Supreme Court of the State of Texas

MOTION ON BEHALF OF THE FEDERAL 
COUNCIL OF THE CHURCHES OF CHRIST 

IN AMERICA FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

To the Honorable Chief Justice and Associate Justices of 
the Supreme Court of the United States:

T he F edekal Council of the Churches of Christ in 
A merica moves the Court for leave to file the brief amicus 
curiae hereto annexed, in support of the petition for a writ 
of certiorari. This brief is filed with the written consent 
of petitioner, but the written consent of the Honorable 
Price Daniels, the Attorney General of the State of Texas, 
has not been obtained although requested.

Dated, September 22, 1949.
T he F ederal, Council of the Churches 

of Christ in  A merica

By: Charles H. T uttle 
Counsel



IK  THE

Supreme Court of the United States
October Term, 1949

No. 44

HEMAN MARION SWEATT,
Petitioner,

v.

THEOPHILIS SHICKEL PAINTER et at.,
Respondents.

On Petition for Writ of Certiorari to the 
Supreme Court of the State of Texas

MEMORANDUM OF THE FEDERAL COUNCIL OF 
THE CHURCHES OF CHRIST IN AMERICA, AS 
AMICUS CURIAE, IN SUPPORT OF PETITION

Interest of The Federal Council *
This brief is filed on behalf of The Federal Council of 

the Churches of Christ in America, because of its profound 
interest in and concern with the legal, ethical and religious

* The Federal Council of the Churches of Christ in America is 
composed of the following religious bodies: National Baptist Con­
vention, Northern Baptist Convention, Church of the Brethren, Gen­
eral Council of Congregational Christian Churches, Czech-Moravian 
Brethren, International Convention of Disciples of Christ, Evangelical 
and Reformed Church, Evangelical United Brethren Church, Five 
Years Meeting of the Friends in America, Religious Society of the 
Friends of Philadelphia and Vicinity, The Methodist Church, African 
M. E. Church, African M. E. Zion Church, Colored M. E. Church in 
America, Moravian Church, Presbyterian Church in U. S. A., Pres-

[ 1 ]



2

principles which, it is respectfully submitted, are chal­
lenged by the decisions of the courts below enforcing seg­
regation as a result of the fact of race. Those decisions 
violate, we firmly believe, the constitutional guarantee of 
equal protection under law and also the free democratic 
principles and spiritual ideals which we profess as a 
nation.

The Position of The Federal Council— 1946

The Federal Council has repeatedly declared its con­
viction that segregation enforced by law is a denial of the 
equal protection of the laws, of the dignity and inherent 
rights of the individual human being, and of the Christian 
concept of universal brotherhood. Such segregation, the 
Council affirms, necessarily predicates inferiority rather 
than equality; divisiveness instead of fellowship; stigma 
instead of dignity; prejudice and bias instead of mutual 
respect and good will; pretense and hypocrisy instead of 
good faith and sincerity in the social controls of opportuni­
ties to achieve an abundant life.

The present instance is, in the opinion of the Council, 
confirmation that the thesis of “ separate but equal facili­
ties”  in the matter of public education tends to maintain 
a permanent pattern of imposed inferiority and subjection.

byterian Church in U. S., Protestant Episcopal Church, Reformed 
Church in America, Romanian Orthodox Church of America, Rus­
sian Orthodox Church of North America, Seventh Day Baptist 
General Conference, Syrian Antiochian Orthodox Church of North 
America, Ukrainian Orthodox Church of America, United Church 
of Canada, United Lutheran Church (consultative body), United 
Presbyterian Church.

The Presbyterian Church in the U. S. dissociates itself from 
this brief by vote of its representatives on the Council’s Exec­
utive Committee.



3

The Official Statement approved by The Federal Council of 
the Churches of Christ in America in March 1946 on the 
subject of “ The Church and Race Relations”  declared 
(among other things):

“ The Segregation Pattern Analyzed
• “  Segregation is the pattern of our American race 

relations. Segregation in America is the externally 
imposed separation or division of individual citizens, 
or groups of citizens, based on race, color, creed or 
national origin. It is accepted, with some differences 
of emphasis, in all sections of the country. It is some­
times established and supported by law. In other 
instances, segregation is almost as rigidly enforced by 
social custom.

“ Segregation in America has always meant in­
ferior services to the minority segregated. This pat­
tern has never been able to secure equal, separate 
services to the minority segregated. Segregation is 
always discriminatory.

“ Segregation is an expression of the inferiority- 
superiority pattern of opinions about race held tena­
ciously by the vast numbers of Americans. Segrega­
tion is not only the expression of an attitude; it is 
also the means by which that attitude is transmitted 
from one generation to another. Children of our 
society, observing minorities as we segregate them, 
cannot easily escape the conclusion that such minori­
ties are inferior.

“ Segregation as practiced in America probably 
has more effect on the racial opinions of the young 
than formal teachings of the schools about democracy, 
or of the Church about Christian brotherhood.

“ Segregation as applied to our economic system 
denies to millions of our citizens free access to the 
means of making a living and sets for them insur­
mountable obstacles in their efforts to achieve free­
dom from want.



4

“ In the greatest crisis in our history, segregation 
made it impossible to utilize fully large sections of 
our manpower in the armed services and war pro­
duction. It also seriously limits the contributions of 
minority groups to the ongoing life of our people in 
the fields of art, education, science, industry, etc.

“ Segregation subjects sections of our population 
to constant humiliation and forces upon them spiritual 
and psychological handicaps in every relation of 
life. This creates a yawning and ofttimes unabridged 
chasm in the quality of human fellowship and stands 
in contradiction to the higher American dream. Still 
more devastating is the moral and spiritual effect 
upon the majority.

“ Segregation handicaps the nation in international 
relationships. It was a source of great embarrass­
ment to our leaders that we found it difficult to locate 
an American community where racial practices were 
acceptable for establishing the headquarters of the 
United Nations Organization. This is a discourag­
ing factor within our life as a nation as we begin to 
play our part in the new world unity upon which our 
future existence depends.

“ Political segregation has disfranchised large num­
bers of our citizens, tending to create unnecessary con­
fusion in dealing with important national issues, 
creating unreal political divisions and giving rise to 
a type of political demagoguery that threatens the 
very existence of democratic institutions.

“ Segregation increases and accentuates racial ten­
sions. It is worth noting that race riots in this 
country have seldom occurred in neighborhoods with 
a racially mixed population. Our worst riots have 
broken out along the borders of tightly segregated 
areas.

“ The pattern of racial segregation in America is 
given moral sanction by the fact that churches and 
church institutions, as a result of social pressure, have 
so largely accepted the pattern of racial segregation 
in their own life and practice * * *.



5

“ The Federal Council of the Churches of Christ 
in America hereby renounces the pattern of segrega­
tion in race relations as unnecessary and undesirable 
and a violation of the Gospel of love and human 
brotherhood. Having taken this action, the Federal 
Council requests its constituent communions to do like­
wise. As proof of their sincerity in this renunciation 
they will work for a non-segregated Church and a 
non-segregated society.”

In a later Official Statement on the subject of “ The 
Churches and Human Rights,”  adopted December 1948, 
The Federal Council of Churches stated (among other 
things):

“ Social, Economic and Political Eights
“ These rights, which should be available to all 

without discrimination as to race, color, sex, birth, 
social or economic status, or creed, include:

“ A. Full opportunity to participate in the eco­
nomic resources of the community, including:
“ 1. The right to a standard of living adequate for 

the welfare and security of the individual and the 
family.

“ 2. The right of every employable person to work 
under decent conditions, for fair compensation, 
and to be upgraded in keeping with character and 
ability; or to engage in an individual enterprise 
or profession.

“ 3. The right of all persons to organize into labor 
unions, corporate enterprises, cooperative ven­
tures, and for social action.

“ B. Full opportunity to participate on a non- 
segregated basis in the social and public life of the 
community, including:
“ 1. The right to wholesome living space.



6

“ 2. The right to move within one’s country, and to 
leave and return to one’s country.

“ 3. The right to educational and professional train­
ing and to cultural opportunities.

“ 4. The right to recreational opportunities and fa­
cilities.

‘ ‘ 5. The right to participate in the use of community 
social services.

“ 6. The right to adequate health services.
“ 7. The right to the use of transportation on the 

basis of full equality.
‘ ‘ 8. The right to receive equal service from businesses 

and persons serving the public, such as stores, 
theaters, hotels and restaurants.”

This determined opposition to segregation was also 
part of a report received and commended to the churches 
in September 1948 by the First Assembly of the World 
Council of Churches at Amsterdam, Holland, attended by 
the representatives of 140 religious denominations. This 
report stated:

“ Man is created and called to be a free being, re­
sponsible to God and his neighbor. Any tendencies in 
State and society depriving man of the possibility of 
acting responsibly are a denial of God’s intention for 
man and His work of salvation.

*  *  #

“ It (the Church) knows that it must call society 
away from prejudice based upon race or colour and 
from the practices of discrimination and segregation 
as denials of justice and human dignity, but it cannot 
say a convincing word to society unless it takes steps 
to eliminate these practices from the Christian com­
munity because they contradict all that it believes 
about God’s love for all His children.

*  #  *



7

“ The Church has always demanded freedom to 
obey God rather than men. We affirm that all men are 
equal in the sight of God and that the rights of men 
derive directly from their status as the children of 
God. It is presumptuous for the state to assume that 
it can grant or deny fundamental rights. It is for the 
state to embody these rights in its own legal system 
and to ensure their observance in practice.

*  *  #

“ With all the resources at their (the churches’ ) 
disposal they should oppose enforced segregation on 
grounds of race or color, working for the progressive 
recognition and application of this principle in every 
country. ’ ’

Segregation, particularly in the matter of educational 
facilities, is in reality a survival, and in its operation a 
perpetuation, of the caste system. It is born of the concept 
of racial superiority and of class dominance which has 
brought incalculable misery to the human race through the 
ages. Self-preservation, to say nothing of the stability and 
sincerity of democratic institutions and of the obligations 
which men of good will profess, requires that this legacy 
find no shelter or perpetuation under the sanction of our 
Constitution and within the body of our law.

We shall not attempt in this brief now to discuss the 
various judicial decisions which are cited and analyzed in 
the various briefs submitted in connection with this peti­
tion. We recognize that the legalistic aspect of the issue 
is important and relevant; but we are convinced of the 
greater relevancy and force of the fundamental principles 
on which alone our Constitution rests and by which alone 
it can be sustained. We do not believe that in the human 
tempest which has been shaking the world for several



8

decades, our form of government and way of life can 
permanently endure on the basis of discriminations and 
segregations which constitute a contradiction of our prin­
ciples by our actions. It is still true that this country 
cannot exist half slave and half free.

The convictions, legal, social, ethical and religious, 
which The Federal Council has set forth in Official State­
ment, and which it deems an essential part of the mission 
for which it exists find, we believe, sufficient and control­
ling expression in the field of constitutional law in the 
unanimous decision of this Court on May 3, 1948 in 
Shelley v. Kraemer, 334 U. S. 1, 23:

“ The historical context in which the Fourteenth 
Amendment became a part of the Constitution should 
not be forgotten. Whatever else the framers sought 
to achieve, it is clear that the matter of primary con­
cern was the establishment of equality in the enjoy­
ment of basic civil and political rights and the preser­
vation of those rights from discriminatory action on 
the part of the States based on considerations of race 
or color. Seventy-five years ago this Court announced 
that the provisions of the Amendment are to be con­
strued with this fundamental purpose in mind.”

These profound words constituted the heart and spirit 
of an historic constitutional decision which struck down 
enforced segregation, either by public act or private agree­
ment, in the matter of a place to live physically. They 
apply with far more force and aptness in the matter of a 
place to live mentally and spiritually. The right to life, 
liberty and the pursuit of happiness, and the right to 
enjoy and exercise as an equal the inalienable rights with 
which every man is endowed by his Creator, is not and 
cannot be confined to physical existence. Man is not merely



9

body. He is also and chiefly mind and spirit; and “ the life 
is more than meat, and the body is more than raiment.”  

Segregation in the matter of a place to live means the 
ghetto. Segregation in matters of the mind and spirit 
means second-class citizenship. Both betray a Constitution 
which, as said by Mr. Justice Murphy in Oyama v. Califor­
nia, 332 U. S. 633, 663, “ embodies the highest political 
ideals of which man is capable, ’ ’ and ‘ ‘ insists that onr gov­
ernment, whether state or federal, shall respect and observe 
the dignity of each individual, whatever may be the name 
of his race, the color of his skin or the nature of his 
beliefs.”  Both betray the very foundations of our demo­
cratic way of life and hence also our effort to exert leader­
ship in founding on that way of life a durable peace 
throughout the world. Both betray what Emil Brunner, in 
his recent treatise “ Justice and the Social Order,”  so truly 
describes as the “ sacred law, which can be appealed to 
against every inhuman, unjust social order, against any 
caprice or cruelty on the part of the state.”

Hence, we earnestly join in the request that this peti­
tion for a writ of certiorari be granted, in order that the 
inherent issue so overshadowing our American life may he 
fully discussed, considered and decided in this great 
tribunal.

Respectfully submitted,

Charles H. T uttle,
Attorney for The Federal Council of the 

Churches of Christ in America,
15 Broad Street,
New York 5, N. Y.



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