is remarkable about this is not so much what it says as what it does not say. For perhaps the first time in the history of man, in the West at least, a written constitution of the powers of the state omits any assertion of a power or obligation to promote religion, carry out God's will, or defend the true faith. Indeed, the word of God is not even mentioned either in the preamble or the text of the Constitution. Nor is there any reference to religion in it other than in the provision that no religious test shall ever be imposed for public office.

These omissions were not accidental or an oversight; 55 religious men meeting for many days could hardly overlook God or religion. Nor did they. The omission was deliberate, based upon the premise that man's relationship to God was not and could not be a matter of governmental concern or jurisdiction.

Such a philosophy must be contrasted with the philosophy which underlies a totalitarian society. The very name totalitarian discloses this philosophy—that the state is and controls the totality of man's life, and that no aspect of his living and his personality is beyond the jurisdiction and control of the state. It is for this reason that although the Communist nations are committed to the Marxist dictate that religion is an evil which must be extirpated, in Communist countries such as Poland, Hungary, and Rumania religion is financed by the state, priests are paid salaries by the state as civil service employees, and religion is taught in the state schools. Good or bad, nothing escapes the control of the state in a totalitarian society.

The meaning of the principle of separation of church and state, implicit in the Constitution and explicit in the first amendment, has on four separate occasions been spelled out by the Supreme Court in the following language:

"The establishment of religion' clause of the first amendment means at least this: Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a State nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"

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Our Constitution and Bill of Rights were adopted before the development of cur public school system, and the application of the first amendment to public education and tax-raised funds was therefore not initially clear. But by 1875 our public school system had become firmly established, and the application to it of the principle of separation of church and state was eloquently expressed by President Grant in his address that year to the Grand Army of the Tennessee: "Encourage free schools and resolve that not one dollar appropriated for their support shall be appropriated for the support of any sectarian schools. Resolve that neither the State nor the Nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogma. Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contribuions. Keep the church and state forever separated."

These words are as relevant today as they were when they were uttered, just about four score and seven years ago. That they reflected the universal feeling of the American people is evidenced by the fact that in the century and threequarters that have passed since our Constitution was adopted, Congress has never enacted a single measure for the support of church schools. It is evidenced further by the fact that although there are 50 State constitutions and 50 State legislatures, each completely independent of all others, in every one of the States without exception it is unlawful to grant tax-raised funds for the support of church or parochial schools. Such universality cannot be explained except in terms of commitment to the principle of church-state separation and the preservation of the public school system. There has been, we suggest, a universal recognition that opening n the Public Treasury to parochial schools would at

the same time breach the principle of church-state separation and gravely endanger the continuance of the public school system.

No better evidence that use of tax-raised funds to finance church schools would violate the principle of church-state separation can be presented than by pointing out that the principle became part of our Constitution as the immediate result on an unsuccessful effort to finance church schools out of tax-raised funds. This event took place in Virginia in 1786, just 1 year before the Constitution of the United States was framed in Philadelphia. A bill was introduced in the Legislature of Virginia whose purpose it was to provide tax funds for religious schools. The bill provided that every taxpayer could designate the denomination that would be the beneficiary of his payment. After a bitter struggle the bill was defeated, largely as a result of the efforts of James Madison, the father of our Constitution and the author of our Bill of Rights.

The major factor in the defeat of the measure was Madison's monumental "Memorial and Remonstrance," one of the great documents in the history of American freedom. In it, Madison set forth 15 arguments against governmental support of religion, arguments as valid today as they were in 1786. Basically they fall into two classes; those predicated on the concept that religion is outside the jurisdiction of political government, and those predicated on the concept of voluntariness in matters of conscience the two aspects of what 5 years later were to become the words of the first amendment, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

The defeat of the Virginia bill in 1786 was followed by the enactment of Jefferson's great Virginia statute establishing religious freedom. This law, too, reflected the dual aspect of what was later to be the religion clause of the first amendment-voluntariness and separation. The act forbade the use of tax funds for religious purposes, and prohibited such use even if a taxpayer's money were to be paid exclusively to the religion of his own choice.

Almost a century ago the Supreme Court held that this Virginia struggle was part of the history of the first amendment, and that the amendment must be interpreted in the light of this history. It is for that reason that the Supreme Court in 1947 said unqualifiedly that a State "cannot consistently with the 'establishment of religon' clause of the first amendment contribute tax-raised funds for the support of an institution which teaches the tenets and faith of any church." Five years later, in the Zorach case, the Court again stated unequivocally that under the first amendment, "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person."

It seems clear to us that once we accept the proposition that governmental funds may be employed to finance parochial school education, we challenge directly the twofold premise of the Constitution and the first amendment: That religion is outside the jurisdiction of Government, and that in the area of religion the only valid basis for support or adherence is the voluntary choice of each individual.

3

The test of any principle is in its tangible fruits, and one of the most notable and noble of the fruits of church-state separation is our nonsectarian public school system. "The modern public school," said Justice Frankfurter in the McCollum case, "derived from a philosophy of freedom reflected in the first amendment." The public school, he said further in the same opinion, was "designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people." The Court in that case recognized that the public school system would be gravely threatened by the introduction of religious teachings and practices. We suggest that it would be equally threatened if tax-raised funds were to be made available for the support of church schools. Were this to come about it would be inevitable that a host of new school systems would spring up. There are today well over 250 religious denominations in the United States. One thing can be said with certainty: if any religious denomination would be allowed to receive tax-raised funds for its schools, our Constitution as construed by our Supreme Court would require that all be allowed to do so. Even if but a small fraction of these 250 denominations exercised the privilege, the consequences to the public school system could well be mortal. Consider what happened in the Netherlands. Before tax-raised

funds were made available to confessional schools, only one out of every five Dutch children attended such schools, and the other four attended public schools. When, after almost a century of pressure, the Constitution was changed so as to provide for governmental financing of confessional schools, the ratio was almost reversed. Today about three out of four children in Holland attend confessional schools and only one out of four attends public school. Is there any reason to believe that a similar change would not ensue in this country if our Constitution were changed as was the Netherlands Constitution?

The fragmentation of the public school system would be but one of the many unfortunate consequences of the initiation of a policy of dividing governmental education funds among religious groups. We can expect bitter rivalries among the sects in seeking what they deem their fair share of the pie. One can expect the employment of high-priced lobbyists by the various church groups, and perhaps even the formation of religious political parties to push for Government funds. It is not unreasonable to expect too that the public schools, lacking such well-organized and religiously committed pressure groups to push their claims, will become the stepchildren of tax-raised funds, receiving only what is left after the sectarian forces have had their shares. One thing can be said with reasonable certainty; division of tax-raised education funds among a multiplicity of school systems will inevitably lead to a deterioration of education, for such parallel school systems are necessarily duplicative and wasteful, and the limited amount of tax-raised funds available for education will necessarily purchase a substantially inferior education.

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We suggest finally that in the long run religion will be hurt rather than helped by this development. The danger of governmental control is a real one. Indeed, it may well be questioned whether the Government can constitutionally grant tax-raised funds to private institutions without exercising some control on how such funds are to be used. Education in the United States is traditionally locally controlled, and therefore the Federal Government may delegate to the State governments major responsibility for the control of the use of Federal funds granted to public education, particularly since the major cost of such education is borne by the States. This is what is intended in the disclaimers of Federal control contained in the various proposals for Federal aid to public education. But some governmental control there must be if governmental funds are granted to schools.

This, in any event, has been the uniform lesson of history. Wherever and whenever governmental funds have been used for religious education there has always been some measure of governmental control. This is true even in such Communist states as Poland and Hungary. It is also true in those countries in which there is a close relationship between church and state. The measure of control may vary from State to State and from time to time, but nowhere has there been a complete divorcement of State control from State financing.

Those who wrote into our national charter the mandate that church and state must be kept separate and independent of each other were not motivated by any hostility to religion. On the basis of a long and tragic history of the commingling of church and state they reached the conclusion that the cause of religion is best served by separation and independence. Similarly, opposition to public funds for private education is not motivated by hostility to private schools. America has room for both public and private schools. But schools can remain private only if they are privately financed. Once compulsory taxation replaces voluntary contributions as the source of support, the schools have no moral right to call themselves private. Perhaps more important, the public will sooner or later refuse to consider them private, and will impose upon them the same regulation and control which other publicly financed agencies are and must be subject to in a democratic society.

The premise upon which the first amendment rests is as valid today as it was in 1791. The absolute separation of church and state is best for the church and best for the state and secures freedom for both.

II. FEDERAL AID SHOULD NOT BE GRANTED TO SECTARIAN COLLEGES

We submit that the reasons underlying opposition to Federal aid to churchrelated elementary and secondary schools are equally applicable to colleges and universities.

Preliminarily, it should be noted that the idea of such a distinction is new. Without exception, every State in the Union by constitution or law forbids public appropriations to sectarian educational institutions. These prohibitions date back well over a century. Yet, in not one of the States has there been any indication that the prohibitions do not apply equally at all levels of education. Nor do the statements of the Supreme Court that the U.S. Constitution forbíds giving Government funds to sectarian institutions indicate a distinction between different levels of education. (See, e.g., the statement in the Everson parochial school bus case that a State "cannot consistently with the 'establishment of religion' clause of the first amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church": or in the Zorach released time case, that "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education * * *".) The burden of proof and of justification, therefore, rests upon those who assert that such a distinction should be made. With this in mind, we now consider the specific arguments offered by its proponents.

1

Efforts to obtain sorely needed Federal aid for education have foundered on the reefs of sectarian conflict. Protestant and other opposition to any Federal aid bill that includes parochial schools has been matched in effectiveness by Catholic opposition to any bill which does not. It is urged that the only wày to break the stalemate is by some reasonable and realistic compromise, and that drawing a line of distinction between lower and higher education is such a compromise.

In reply to this, it may be suggested that if there is no difference in principle between colleges and elementary and secondary schools, then what is offered as a compromise is a violation of basic principle. No matter how needed Federal aid to education may be, the price of violating our Bill of Rights and the fundamental principles of our democracy is too high to be paid.

Aside from principle, it is more than doubtful that the compromise would be effective. The Catholic Church has steadfastly refused to agree to the compromise or to relinquish its claim to Federal funds for its parochial elementary and secondary schools. Indeed, it might, with some justice, argue that the so-called compromise is really preferential to Protestantism, which concentrates most of its educational expenditures on the college level, and discriminatory to Catholicism in which parochial education on the lower level is of major importance. In any event, it can reasonably be predicted that if Federal funds are made available to church-related institutions at the college level the demands for such funds at lower levels will not be abated, but more likely will be intensified.

2

It is argued that a distinction can be made between college and university education on the one hand and elementary and secondary education on the other in that the later is compulsory under State school attendance laws, whereas, the former is entirely voluntary. From this it is urged that governmental financing of church-related higher education may be permissible even if it is not permissible on lower levels.

The logic of this conclusion is difficult to grasp. Indeed, if there is any distinction it would seem to point to the converse. One of the major Catholic arguments for Government financing of parochial schools is that school attendance is compulsory by law and the Catholics' religious conscience requires that education be religiously oriented. In order, therefore, to protect the Catholics' religious liberty, it is necessary to finance parochial schools so that the Catholic children can fulfill their legal obligation without violating their conscience. Since, however, there is no such legal obligation with respect to higher education, the argument for Government support is considerably weaker rather than stronger.

There was a time when free public education was limited to six grades in elementary schools and all additional education had to be obtained in private schools. Progressively, free public education was extended to eight grades and then to high school. Today the trend continues, and America is seeking to achieve the goal of being able to provide free, public college education to every

history required and justified exclusion of primary and secondary sectarian education from receiving tax-raised funds, applies today and will apply tomorrow equally to college and university education.

3

Another argument often urged rests on the difficulty of defining sectarian or church-related colleges. It is easy to distinguish between public and parochial schools but it is often difficult if not impossible to distinguish between sectarian and secular colleges. Yale and Harvard, for example, were founded by the Congregationalist Church, Columbia by Episcopalians, and Princeton by the Presbyterians. Are these for that reason to be barred from Federal aid as sectarian institutions? The impossibility of distinction in definition requires that there be no distinction in treatment and either all should receive Federal funds or none.

It should be noted, in the first place, that at the lower level the distinction in respect to Federal aid is not between sectarian and secular schools, but between public and private schools. The entire problem of drawing a line would be eliminated if the pattern of the bills for Federal aid on the lower levels were followed by limiting such aid to public schools and universities. After all, this is the pattern in the overwhelming majority of States, where tax-raised funds are granted exclusively for public colleges.

But even if private secular colleges are to be included, the problem of drawing a dividing line is not insurmountable. The religious origin of Columbia does not make it a sectarian institution any more than the religious origins of our public school system make it sectarian. The Supreme Court has ruled that the test under the first amendment's requirement of church-state separation is not the origin of an institution but whether it is today sectarian or secular in operation and control.

Many States have laws forbidding discrimination in employment or in education. Practically all exempt sectarian institutions in whole or in part. These States appear to have experienced no great difficulties in administering the exemptions. The constitution of Pennsylvania forbids grants to sectarian institutions but permits grants to secular ones. Under this provision, millions of dollars annually are appropriated to such private institutions as the University of Pennsylvania, Drexel, and Temple, but none is given to Villanova, St. Joseph, or Dropsie. There is no evidence of any difficulty in administering the constitutional provision. The fact is that in 95 percent of the cases there will be no difficulty in deciding whether a particular college is sectarian or secular. (The World Almanac and the various college guides have for years designated colleges as denominational and nondenominational.) In the remaining 5 percent borderline cases, the Commissioner of Education can be empowered to make the initial determination, and provision can be made in the law for an appeal to the courts from his decision.

Finally, if the difficulty of drawing a line between what is constitutional and what is not justifies all governmental action, then there will be nothing left to the Bill of Rights. It is, for example, difficult to draw a line between speech protected by the first amendment and speech which may constitutionally be prohibited or restricted; the numerous sharply split Supreme Court decisions in free speech cases show this. But should we for that reason adopt a policy that all speech is subject to prohibition or restriction?

Certainly, it would be simpler to administer a college aid law which does not distinguish between sectarian and nonsectarian institutions and grants tax-raised funds to all. Simplicity of administration, however, is not the highest of values in a democratic society. It should not be purchased at the expense of a fundamental guarantee of the Bill of Rights.

4

We are, it is argued, now engaged in a great ideological conflict with the Communist nations. The cold war may at any time break out into a hot war in which our very survival will be at stake. Necessity demands that

in preparation for a total war we mobilize the totality of our resources, including our church-related colleges and universities.

This is the most dangerous argument of all. It is, in effect, that in the interest of what the Government deems to be our defense, anything goes. It assumes that the Constitution may be scrapped not only in time of war,