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potential conflict among them. The most significant of these conditions is that to a substantial extent education at the lower levels, which a State requires and compels, is being carried out by schools which teach according to particular religious tenets, although at the same time satisfying secular educational standards established by the State. This is a form of education which the State cannot constitutionally prohibit. It is settled that individuals have a constitutional right to a religious education. At the same time, sectarian schools are ones which the State cannot constitutionally require à student to attend. There is a constitutional right to freedom of religion or no religion.

The difficult problem is posed by the dual constitutional mandate: that the State must recognize these schools as part of its educational system for purposes of compulsory attendance laws, but that it cannot support them in ways that would constitute an "esablishment of religion."

The problem is accentuated by the fact that American society is one in which religion touches much of everyday life, both in the home and in the school. It is a society in which customs, practices, morals, and ceremonies have been import antly influenced by religion. Fundamental as are the principles contained in the first amendment, it is clear that they cannot always be absolutes. The problem is to draw a line between what is permitted and what is prohibited in accordance with applicable constitutional principles. Since this must be done in the society in which we actually live-a society in which aspects of religion are inextricably entwined with knowledge and culture history and experience may be sounder guides to locating Jefferson's "wall of separation between church and state" than abstract logic.

Even the general agreement that the State cannot constitutionally permit teaching of religion in public schools illustrates some of the difficulties. Examples of efforts to draw the line between constitutionally permissible and impermissible State action have extended to such matters as readings from the Bible, prayers, and celebrations of religious holidays. Pushing the separation doctrine to its logical extreme would make education virtually impossible. History is replete with religious ideas, principles, and experience. Furthermore, it is readily apparent that what one person would classify as simply secular knowledge another would regard as religious instruction. The content of religious belief is largely the prerogative of religious groups to define, though they differ among themselves as to what is included. The content of education is for public authorities to define. Where definitions overlap difficulties arise. It would be footless to deny that drawing the line between the permissible and impermissible is a hard task. In the Everson case itself, although the Court was unanimously of the view that the establishment of religion clause forbade a State from using public funds for sectarian education, it nevertheless divided by the closest margin (5 to 4) on whether State reimbursement of parents for fares paid for public transportation to a sectarian school constituted a prohibited use. But, however difficult it may be to find the line in marginal situations, this difficulty cannot properly be used to avoid constitutional proscriptions. There are clear cases as well as difficult ones.

To summarize, the broad principles are clear enough in the light of recent decisions. The first amendment does not require government to be hostile to religion, nor does it permit governmental discrimination against religious activities. The objective is neutrality, however difficult it may be to be neutral or to determine what neutrality requires in relation to particular factual situations. Zorach reaffirms that the State may not actively support a religious organization. On the other hand, it may, and perhaps under some circumstances must, temper its secular requirements if religious observances conflict with them. There is the consistent emphasis in the cases that public funds may not be used to finance religion and that public property may not be used to assist it. Yet, the decisions warn that a person may not be denied general public benefits on religious grounds without violating the first amendment and the due process and equal protection clauses of the fifth and 14th.

II. THE JUDICIAL PRECEDENTS

As earlier noted, prior to the decision in Everson, the Supreme Court had little occasion to consider the problem of governmental aid to religious schools. The right to attend such schools was clearly established in the 1920's. (See

3 See, for example, the flag salute case, Board of Education v. Barnette (319 U.S. 624 (1943))).

Pierce v. Society of Sisters, supra; see also Meyer v. Nebraska, 262 U.S. 390 (1923); Farrington v. Tokushige, 273 U.S. 284 (1927).) The Quick Bear case, supra, had dealt with the unique problem of the use of Indian trust funds. The Cochran case, supra, had been decided before it had been determined that the establishment of religion clause of the first amendment operated upon the States by virtue of the due process clause of the 14th amendment.*

As indicated above, the controversy in the Everson case concerned a local school board resolution adopted pursuant to a New Jersey statute. This resolution authorized reimbursement to parents of expenditures for transportation of their children to public and Catholic schools on regular buses operated by the public transportation system. A taxpayer filed suit challenging this action of the school board. The Court unanimously agreed that the due process clause of the 14th amendment embodied the "establishment of religion" prohibition contained in the first amendment. Five Justices found that the statute involved did not constitute a "law respecting an establishment of religion." It should be emphasized, however, that all nine Justices agreed that the clause prohibited governmental aid to religion; the disagreement turned, rather, upon whether the benefit was conferred upon the children or upon the parochial schools.

The most extensive discussion appears in the dissenting opinion of Mr. Justice Rutledge. On the basis of his evaluation of the historical materials and his view of the objectives of Madison and Jefferson, leading proponents of the amendment, he stated that "The amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a com-' plete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion. In proof the amendment's wording and history unite with this Court's consistent utterances whenever attention has been fixed directly upon the question" (330 U.S. 31–32). He concluded, therefore, that the taxing power may not be used to give support to religious training or belief and that "transportation, where it is needed, is as essential to education as any other element"; and that it "is impossible to select so indispensable an item from the composite of the total costs, and characterize it as not aiding, contributing to, promoting or sustaining the propagation of beliefs which it is the very end of all to bring about" (330 U.S. 47, 48).

Justice Black, writing for the majority, adopted a similar view of the purpose of the first amendment. He stated:

"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'" (330 U.S. 15-16).

He concluded, however, that the State cannot deny any of its citizens the benefits of public welfare legislation because of their religion. He emphasized that much of such legislation (for example, that providing fire and police protection, etc.) incidentally benefits religious institutions, and that such benefits do not constitute proscribed support of the institutions. In this light he viewed the New Jersey statute merely as providing a program to get children, “regardless of their religion, safely and expeditiously to and from accredited schools.". He therefore interpreted the purpose of the statute as a general, nondiscriminat

For this reason the Cochran case is dubious authority for the proposition that textbooks may be provided by a State to parochial school students. The crucial question of whether the establishment clause of the first amendment prohibits the expenditure of public funds for textbooks to be used by church-school pupils was not presented to the Court in this case, and the Court therefore had no occasion to rule upon the question.

ing one, designed to protect the health and safety of all schoolchildren. On this basis he was led to the conclusion that, while the New Jersey statute “approaches the verge" of impermissible action under the first amendment, it did not actually breach the "wall of separation between church and state.”

The specific holding in the Everson case permitted the use of public funds to confer a limited benefit upon children attending religious schools. Nevertheless, the language and reasoning of both the majority and minority gives scant comfort to those who feel that, as a matter of fairness, State support ought to be provided to those schools. Proponents o fthis view point out that religious schools meet the educational standards imposed by the States and relieve the States of the burden of educating large numbers of children. The parents of children attending religious schools are taxed to support the public schools, yet receive no reciprocal benefits from the States.

The majority opinion states that "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." [Emphasis supplied.] If one assumes that a principal reason for the existence of a religious school is to provide religious teaching and the practice of religion (not available in public schools), and that religious considerations are intertwined in the entire fabric of sectarian education, moneys raised by taxation cannot be used to support such education. Obviously then, direct grants to sectarian schools are prohibited. The only question remaining open is whether the use of funds for general welfare purposes in a manner which benefits religious schools also constitutes prohibited support.

Because the clear import of the Everson opinion was that neither the Federal Government nor the States can directly support religious schools, a concentrated attack was made upon its rationale. The focus of this attack was on the Court's reading of history; that, in fact, the purpose of the first amendment was merely to strike at the official establishment of a single sect, creed, or a religion, as exists in England, and that the amendment was not intended to prohibit nonpreferential aid to all religions. This view has been vigorously argued by some scholars. For present purposes it is sufficient to note that it was presented to and considered by the Supreme Court in McCollum v. Board of Education, supra. While it might be argued that Justice Reed adopted this view in his dissent, it is plain that the eight other members of the Court rejected it. The question is not open today.

The McCollum case involved the constitutionality of the system of "released time" adopted in Champaign, Ill. Under an arrangement made with various religious faiths, representatives of those faiths were permitted to offer classes in religious instruction in the public schools. The classes were held once a week for 30 minutes in the lower grades and 45 in the higher grades. The teachers were not paid by the public school authorities, and the classes were attended only by students whose parents had requested it. Students who did not choose the program continued their secular studies in other classrooms. Justice Black, writing the opinion of the Court, stated that the arrangement was clearly prohibited by the holding in Everson:

"The foregoing facts, without reference to others that appear in the record, show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the 1st

Earlier this year the Supreme Court dismissed an appeal for want of a substantial Federal question in Snyder v. Town of Newton, U.S., 5 L. Ed. 2d 688 (1961), a case in which the Connecticut Supreme Court of Errors, on the authority of Everson, upheld the constitutionality of providing bus transportation to parochial school students. Justice Douglas, who had voted with the majority in Everson, and Justice Frankfurter, who had voted with the minority, both specially noted their votes to have the Supreme Court review the Connecticut decision.

See J. M. O'Neill, "Religion and Education Under the Constitution" (1949). The use of the O'Neill thesis by counsel in the McCollum case is referred to in Pfeffer, "Church and State: Something Less Than Separation," 19 U. of Chi. L. Rev. 1, 2 (1951).

amendment (made applicable to the States by the 14th) as we interpreted it in Everson v. Board of Education * * *" (333 U.S. 209–210).

He went on to state:

"Recognizing that the Illinois program is barred by the 1st and 14th amendments if we adhere to the views expressed both by the majority and the minority in the Everson case, counsel for the respondents challenge those views as dicta and urge that we reconsider and repudiate them. They argue that historically the first amendment was intended to forbid only Government preference of one religion over another, not an impartial governmental assistance of all religions. In addition they ask that we distinguish or overrule our holding in the Everson case that the 14th amendment made the 'establishment of religion' clause of the 1st amendment applicable as a prohibition against the States. After giving full consideration to the arguments presented we are unable to accept either of these contentions" (id., at 211).'

Zorach v. Clauson, supra, is the last case in which the Supreme Court has considered the "establishment of religion" prohibition. It also involved "released time." There the plan permitted students actually to be released from the public schools at their parents' request in order to obtain religious instruction elsewhere. The churches participating reported to the schools the names of children released from school who did not appear for religious instruction. In a 6-to-3 decision, the Court concluded that there was no element of coercion in the plan and that the only issue involved was whether public schools may excuse those who wish to worship or obtain religious instruction. The principles of the earlier cases were, however, carefully preserved. The Court stated:

"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. But we find no constitutional requirement which makes it necessary for Government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The Government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here" (343 U.S. 314).

In separate dissents, Justices Black, Frankfurter, and Jackson said that since in effect the machinery of the State was being used to provide pupils to religious groups, the plan was constitutionally indistinguishable from that held invalid in McCollum.

The majority opinion, while emphasizing that ours is a religious nation, with profound religious traditions affecting and intermingling with secular activities (id. at 313-314), does not abandon the basic view of the first amendment adopted in Everson and McCollum. The most that can be said is that the opinion evidenced a somewhat more flexible attitude toward problems of separation.

The State court cases which have been decided since Everson have interpreted that case and McCollum and Zorach as precluding use of public funds to pay tuition at sectarian schools. Almond v. Day (197 Va. 419, 89 S.E. 2d 851 (1955)), held that State payments to sectarian elementary and secondary schools for the education of war orphans violated the first amendment because such payments utilize "* * * public funds to support religious institutions contrary to the principles laid down in Everson * * * It affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery * * *. It compels taxpayers to contribute money for the propagation of religious opinions which they may not believe" (89 S.E. 2d 858).

Swart v. South Burlington Town School District (167 A. 2d 514, Vt. (1961)), involved a school district which did not maintain a high school. Pursuant to statute the parents were permitted to choose schools, and the district paid the tuition. Under this plan it made tuition payments to Catholic high schools. The court read the Everson, McCollum, and Zorach cases as raising the following question, which it answered affirmatively:

In his concurring opinion, Justice Frankfurter also made it clear that "the 1st and 14th amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church'" (id. at 213). Justice Jackson who, in a separate concurrence expressed doubts as to the standing of the complainant and the scope of the relief granted, concurred in this opinion.

"Does the payment of tuition to a religious denominational school by a public entity finance religious instruction, to work a fusion of secular and sectarian education?" (167 A. 2d 520).

The court, although noting that the district did not maintain a public high school, that the Catholic schools involved had been approved by the State board of education, and that non-Catholic students were not required to attend reli gious instruction, concluded, nevertheless, that the first amendment had been violated.

The foregoing two cases are the only State court decisions since Everson that have dealt with the payment of tuition to sectarian schools. Both hold such payments unconstitutional on the basis of that authority. Other State cases, however, have sustained payments to other types of sectarian institutions in specialized circumstances. Thus, payments for the support and maintenance of neglected and dependent children in denominational homes and institutions were upheld because they were considered as reimbursement rather than a use of appropriated funds prohibited by the State constitution (Schade v. Allegheny County Institution District, 386 Pa. 507, 126 A. 2d 911 (1956)). Payments to sectarian institutions have also been justified where the funds were used exclusively for public purposes and the institution merely operated as a conduit for those purposes. In "Opinion of the Justices" (99 N.H. 519, 113 A. 2d 114 (1955)), there was involved a proposed New Hampshire law which would have provided annual grants-in-aid to hospitals in the State offering nurses' training. This aid would have gone only to charitable hospitals, including sectarian ones which did not discriminate on the basis of the religion of either students or patients. Holding that the grant program would not violate either the first amendment or its New Hampshire equivalent, the court stated:

"The purpose of the grant *** is neither to aid any particular sect or denomination nor all denominations, but to further the teaching of the science of nursing ***. The aid is available to all hospitals offering training in nursing without regard to the auspices under which they are conducted or to the religious beliefs of their managements, so long as the aid is used for nurses' training and for no other instruction or purpose' * * *. If some denomination incidentally derives a benefit through the release of other funds for other uses, this result is immaterial ***. A hospital operated under the auspices of a religious denomination which receives funds under the provisions of this bill acts merely as a conduit for the expenditure of public funds for training which serves exclusively the public purpose of public health and is completely devoid of sectarian doctrine and purposes.

"The fundamental proposition that public moneys shall be used for a public purpose only has not prevented the use of private institutions as a conduit to accomplish the public objectives" (113 A. 2d 116).3

The Everson, McCollum, and Zorach cases have also inspired a large body of scholarly comment. Appendix A is a representative bibliography of such comment. In appendix B we shall briefly describe some of the representative views contained in such comment.

III. THE RELEVANT CRITERIA

The foregoing review suggests the relevancy of several considerations in determining the constitutional reach of the first amendment. The Supreme Court has made it absolutely clear that public funds and public property may not be used for the purpose of assisting any or all religions. In the Everson and ́McCollum cases, it has unequivocally rejected the historical argument, whatever its merits, that the establishment clause merely forbids State favoritism among religions.

The initial inquiry, therefore, must be whether a given legislative proposal is honestly designed to serve an otherwise legitimate public purpose and is not a mere subterfuge for religious support. Application of the test is not always easy. In the Everson case the majority characterized the New Jersey law as related to the health and safety of children-a legitimate public concern. It was likened to police and fire protection services, concededly legitimate "bene'fits" to religious institutions, “incidental” to the larger public interest (330 U.S.

8 A similar early holding by the Supreme Court in Bradfield v. Roberts (175 U.S. 291 (1899)). There the Court held that the first amendment did not preclude the Commissioners of the District of Columbia from entering into a contract with an eleemosynary corporation organized by Catholic sisters for the construction of buildings to be operated as part of the hospital.

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