Alabama Civil Liberties Union et al., Plaintiffs-appellees, v. George C. Wallace, Governor of Alabama, Etc., Defendant-appellant, 456 F.2d 1069 (5th Cir. 1972)

This is an appeal from an order, judgment and decree of the United States District Court for the Middle District of Alabama enjoining defendant-appellant from reading and causing to be read, or permitting anyone subject to their control and direction to read to students in the public schools of Alabama readings from the Holy Bible as required by Title 52, Code of Alabama, Sec. 542 (Recomp. 1958), and declaring Title 52, Code of Alabama, Secs. 542, 543, 544.¹  (Recomp. 1958) unconstitutional and void.

We find no error in the district court's failure to impanel a three judge court under 28 U.S.C. § 2281, for it is well settled that where prior decisions make insubstantial or frivolous any claim that a state statute on its face is not unconstitutional, a three judge court is not required. Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1963). This is such a case. School District of Abington v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).

We thus affirm the judgment of the district court, Alabama Civil Liberties Union v. Wallace, 331 F. Supp. 966 (M.D., Ala., 1971).