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to be constitutionally suspect. A corollary of this proposition is that legislation which satisfied a public purpose under the fourteenth amendment creates a prima facie case of "no aid" under the first amendment. This principal would give the legislative function the dignity to which it is entitled. The legislature would then have reasonable assurance that when it passes a law which satisfies a public purpose, it will not be struck down on the basis of a doctrinaire thesis deriving from an absolute interpretation of the "no aid" principle of the first amendment. Moreover, the fourteenth amendment would be restored to its rightful place in the judicial process. This prime facie case would be materially strengthened if the public purpose coincided with the implementation of rights guaranteed under the free exercise clause of the first amendment. Thus, in addition to the neutrality norm of Everson and Zorach, we have the presumption of "no aid" deriving from legislation which satisfies a public purpose

a presumption which is strengthened when the law implements the constitutional guarantee of religious liberty.

The Supreme Court has moved forward in this direction in the Sunday Law cases.17 In upholding the legislation it acknowledged that there would be some collateral and unavoidable benefits to religion but not aid in an unconstitutional sense, for a public purpose was being satisfied 18 purpose contemplated by the legislature—


17 McGowan v. Maryland, 366 U.S. 420 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Kosher Super Mkt., Inc., 366 U.S. 617 (1961).

18 "However, it is equally true that the 'Estabshment' Clause does not ban federal or state regulation of conduct whose reason or effect

namely the setting aside of a day for rest or leisure. A secular end was intended and achieved. Thus the argument of aid to religion, amounting to establishment, was rejected. Here is an excellent example of the necessity for giving full consideration to the public purpose of the statute in determining whether there is unconstitutional aid. These cases build an important constitutional bridge between the first and fourteenth amendments. They are an extension and refinement of the Everson case.

The Public School

Prayer Case

The latest decision of the Supreme Court involving the establishment clause is that of Engel v. Vitale.19 In this case the Court declared that the following prayer, formulated by the New York Board of Regents violated the first amendment:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.

This prayer was recited in some of the public schools of New York on the recommendation of the State Board of Regents. The various school boards were free to adopt or reject it. If adopted, no.child was required to recite the prayer or remain in the room where it was recited. In holding that the prayer violated the establishment of religion clause of the first amendment, the Court declared: "[I]t is no part of the business of government to compose official

merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation." McGowan v. Maryland, 366 U.S. 420, 422 (1961).

19 N.Y. Times, June 26, 1962, p. 16, col. 1.

prayers for any group of the American people to recite as a part of a religious program carried on by government."

An interesting aspect of this case is that no mention was made of any of the other church-state cases decided by the Court. Nor was any reliance placed upon the "no aid" theory. This is especially significant in light of the concuring opinion of Mr. Justice Douglas who asserted: "The point for decision is whether the Government can constitutionally finance a religious exercise.”20 In support of this plea for a broad ruling, he asserted that: "Our system at the Federal and state levels is presently honeycombed with such financing."21

He cited the following of "aids to religion": the G.I. Bill of 1944, the Hospital Survey and Construction Act of 1946, bible reading in public schools, tax exemption of religious organizations, and the Pledge of Allegiance. He indicated that the problem today would be uncomplicated but for the Everson case and then asserted that this case is "out of line with the First Amendment." Significantly no other member of the Court adopted his view. He stands alone in this extreme application of the "no aid" theory. On the contrary, the Court stated:

There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resem

20 Id. at col. 3. 21 Ibid.

blance to the unquestioned religious exercise that the State of New York has sponsored in this instance.22

Here is the suggestion that the satisfaction of a public purpose, "the expression of love for one's country" is the determining factor which operates to uphold a practice involving a profession of faith in a Supreme Being. No such argument was present in the Engel case and admittedly it would have been difficult to introduce. However, it is obvious that Court is demonstrating a real interest in the element of a public purpose.

Just as the preoccupation with the establishment clause of the first amendment leads many to ignore the implications of the finding of a public purpose under the fourteenth amendment so it also induces advocates of absolute separation to ignore the relevance of the free exercise clause of the first amendment. The first amendment must be given a unitary construction with the viewpoint of securing religious liberty.23 In summary, the "no aid to religion" doctrine must be applied within the limitations of the neutrality mandate, must not ignore the fourteenth amendment implication of the finding of a public purpose, and must respect the relevance of the free exercise clause.

Let us apply these legal norms to the proposition that the religious content of parochial school textbooks and curriculum precludes participation in the National Defense Education Act.

Initially the proponent of this view must concede that the parochial school provides a curriculum that complies with the state requirements. This is a fact and a fact with real legal significance. It thus satisfies 22 Id. at col. 3.

23 McGowan v. Maryland, supra note 18.

a public purpose and imposes a burden on the opponent to demonstrate that any collateral benefit to religion amounts to establishment. The only way that this could be accomplished would be to prove that the legislature had enacted a law for the purpose of substantially benefitting religion. Certainly this was not true of the N.D.E.A. legislation. Congress, concerned by Sputnik, legislated for the purpose of developing more scientists in the schools of the nation. Its interests was a national one and this interest could not be properly served by taking a position that the scientific potential of the children in church-related schools should be ignored because their scientific studies were part of a curriculum which had some religions overtones. To have done so would have impaired the full achievement of the public purpose of the legislation and would have involved an action of hostility toward religion. The Government would have ignored its need because of the children's creed." The Constitution does not ask this much.

It is fortunate that the LaNoue study challenges the N.D.E.A. legislation for it brings into focus the national implications of a constitutional position which ignores the basic norms of interpreting the "no establishment" clause of the first amendment. If Congress had not taken a neutral attitude, if it had not recognized the constitutional implications of the public purpose character of the legislation, the nation would have been deprived of the potential of fifteen per cent of the nation's students. Such a result would be limited not merely to N.DE.A. but to the whole realm of federal aid to education if all qualified schools were not included, including church"Cf. Chance v. Mississippi, 190 Miss. 435, 200 So. 706 (1941).

related schools.

Current Influence of the

Blaine Amendment

Reference is made specifically to federal legislation because we are confronted with a constitutional problem that derives from federal law. This point cannot be emphasized too strongly for there is a growing tendency to interpret the first amendment on the basis of attitudes deriving from state constitutions. This is confusing to say the least, for the provisions of state constitutions concerning the relationship between Church and State have a different judicial and historical background than the first amendment. Most of the state constitutions are directly or indirectly related to the so-called Blaine Amendment which came close to adoption in 187625 at a time when there was open anti-Catholic sentiment. This proposed amendment which narrowly failed to secure a two-thirds majority, read as follows:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State. No public property, and no public revenue of, nor any loan of credit by or under the authority of, the United States, or any State, Territory, District or municipal corporation, shall be appropriated to, or made or used for, the support of any school, education or other institution, under the control of any religious or antireligious sect, organization, or denomination, or wherein the particular creed or tenets of any religious or antireligious sect, organization, or denomination shall be taught; and no such appropriation or loan of credit shall be

25 A similar amendment has been rejected on twenty occasions subsequent to 1876. H.R. Doc. No. 551, 70th Cong., 2d Sess. (1928).

made to any religious or antireligious sect, organization or denomination, or to promote its interests or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution; and it shall not have the effect to impair rights of property already vested. Congress shall have power, by appropriate legislation, to provide for the prevention and punishment of violations of this article.

Though defeated, its basic tenets and philosophy were incorporated into many state constitutions. In these jurisdictions problems arising of a church-state nature are solved by an application of the precise terms of the law deriving from the Blaine proposal." No reference is made to the public purpose of the legislation. A casual examination of the Blaine Amendment indicates quite clearly that it makes no room for this basic concept. The first amendment, on the other hand does not preclude the application of the public purpose principle. For example, the Supreme Court held in Bradfield v. Roberts, 28 that a direct appropriation might be made, for the performance of a public function, to an institution conducted under the auspices of a church which exercised "perhaps controlling influence" over it. Moreover, the Court directly disavowed the argument that

26 4 CONG. REC. 5595 (1876).

27 An example of this approach may be fo in a recent decision of the Wisconsin Suprem Court holding that a law providing transpor tion to all school children from points on re lar school routes to the nearest public sch was unconstitutional. The decision was based a provision of the constitution which embodi the Blaine approach. The court declared that constitution was broader in its reach than ... first amendment and that it prevented any an to parochial schools, even transportaion to t nearest public school. Everson, following u public purpose norm, reached the opposite co clusion.

28 175 U.S. 291 (1899).

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necessity for harmonizing the empowering aspect of the public purpose principle with the limiting aspect of the first amendment.

The nature of the legislation can ease the solution of this problem. For example, most of the federal aid programs do not provide for the full cost of the project. Loans must be repaid with interest and grants are generally on a fifty-fifty matching basis. Therefore, it is fair to assume that the public money does no more than pay for the secular aspect of the instruction. The neutrality norm would preclude the application of an argument based on the disqualifying factor of religion.

Another legislative approach that minimizes the church-state problem is legislation which gives the same things to all schools for educational purposes. An excellent example of this type of legislation is embodied in the Surplus Property Act which makes real the personal property available to all qualified institutions on a donation basis. Similarly, the N.D.E.A. makes the same equipment available to private schools as to public schools for the same purpose but on a different financial basis. St. John's parochial school could only secure a government loan for the purchase of a microscope, whereas, the public school could secure a fifty per cent grant for the procurement of the same item. Legislation was given serious consideration during the first session of the Congress which would have placed all schools in substantially the same position insofar as the N.D.E.A. is concerned."1

These legislative techniques together

"For a more complete discussion of legislative approaches, see National Catholic Welfare Conference, The Constitutionality of the Inclusion of Church Related Schools in Federal Aid to Education, 50 GEO. L.J. 399, 435-36 (1961).

with the principles set forth above will work to the benefit of the national community if they are applied as federal norms of construction divorced from the irrelevant philosophy of the various state constitutions. The tendency of congressmen to reflect the constitutional philosophy of their state in their approach to legislation is understandable but it only confuses and obscures the federal constitutional issue. For example, most state constitutions specifically prohibit grants or donations to religious institutions. It is therefore frequently assumed that grants and donations are per se, bad. There is no such doctrine under the federal constitution, if the grant is made to achieve a public purpose. It would be otherwise if the grant were made to assist religion but we are not addressing these remarks to such legislation.


Progress may not be expected, unless the problem is approached in a scholarly manner with a view toward furthering the national interest. Frankly, I find it difficult to believe that this national issue will be resolved by studies which are predicated on the proposition that the slightest benefit to religion is a disqualifying factor for such a principle is at war with generating and sustaining principles of this country.

32 Congressional action discloses a series of grants and donations to religious bodies. Among them are the following: National Defense Education Act, 72 Stat. 1583, 20 U.S.C. § 421 (1958); National School Lunch Act, 60 Stat. 230 (1946), 42 U.S.C. § 1751 (1958); College Housing Amendments of 1955, 69 Stat. 644 (1955), 12 U.S.C. § 1749 (1958); and the following provisions of the Public Health Service Act: Construction of Hospitals and Other Medical Facilities, 60 Stat. 1041 (1946), as amended, 42 U.S.C. § 291 (1958); Construction of Health Research Facilities, 70 Stat. 717 (1956), 42 U.S.C. $292 (1958); Training of Nurses or Supervisors, 70 Stat. 924 (1956), as amended, 42 U.S.C. § 242e (Supp. III 1959-61).

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