COMMITTEE FOR PUBLIC EDUCATION & RELIGIOUS LIBERTY ET AL. v. NYQUIST, COMMISSIONER OF EDUCATION OF NEW YORK, ET AL.
No. 72-694
Supreme Court of the United States
Argued April 16, 1973—Decided June 25, 1973
413 U.S. 756
*Together with No. 72-753, Anderson v. Committee for Public Education & Religious Liberty et al.; No. 72-791, Nyquist, Commissioner of Education of New York, et al. v. Committee for Public Education & Religious Liberty et al.; and No. 72-929, Cherry et al. v. Committee for Public Education & Religious Liberty et al., also on appeal from the same court.
Leo Pfeffer argued the cause for appellants in No. 72-694 and for appellees in Nos. 72-753, 72-791, and 72-929. With him on the brief were Melvin L. Wulf and Burt Neuborne. Jean M. Coon, Assistant Solicitor General of New York, argued the cause for Nyquist et al., appellees in No. 72-694 and appellants in No. 72-791. With her on the brief were Louis J. Lefkowitz, Attorney General, and Ruth Kessler Toch, Solicitor General. Porter R. Chandler argued the cause for appellants in No. 72-929 and for appellees Boylan et al. in No. 72-694. With him on the brief was Richard E. Nolan. John F. Haggerty argued the cause for appellant in No. 72-753. With him on the brief was Louis P. Contiguglia.†
MR. JUSTICE POWELL delivered the opinion of the Court.
These cases raise a challenge under the Establishment Clause of the First Amendment to the constitutionality of a recently enacted New York law which provides financial assistance, in several ways, to nonpublic elementary and secondary schools in that State. The cases involve an intertwining of societal and constitutional issues of the greatest importance.
As a result of these decisions and opinions, it may no longer be said that the Religion Clauses are free of “entangling” precedents. Neither, however, may it be said that Jefferson‘s metaphoric “wall of separation” between Church and State has become “as winding as the famous serpentine wall” he designed for the University of Virginia. McCollum v. Board of Education, 333 U.S. 203, 238 (1948) (Jackson, J., concurring). Indeed, the controlling constitutional standards have become firmly rooted and the broad contours of our inquiry are now well defined. Our task, therefore, is to assess New York‘s several forms of aid in the light of principles already delineated.5
I
In May 1972, the Governor of New York signed into law several amendments to the State‘s Education and Tax Laws. The first five sections of these amendments established three distinct financial aid programs for non-
The first section of the challenged enactment, entitled “Health and Safety Grants for Nonpublic School Children,”7 provides for direct money grants from the State to “qualifying” nonpublic schools to be used for the “maintenance and repair of... school facilities and equipment to ensure the health, welfare and safety of enrolled pupils.”8 A “qualifying” school is any non-
“Maintenance and repair” is defined by the statute to include “the provision of heat, light, water, ventilation and sanitary facilities; cleaning, janitorial and custodial services; snow removal; necessary upkeep and renovation of buildings, grounds and equipment; fire and accident protection; and such other items as the commissioner may deem necessary to ensure the health, welfare and safety of enrolled pupils.”10 This section is prefaced by a series of legislative findings which shed light on the State‘s purpose in enacting the law. These findings conclude that the State “has a primary responsibility to ensure the health, welfare and safety of children attending... nonpublic schools“; that the “fiscal crisis in nonpublic education... has caused a diminution of proper maintenance and repair programs, threatening the health, welfare and safety of nonpublic school children”
The remainder of the challenged legislation—§§ 2 through 5—is a single package captioned the “Elementary and Secondary Education Opportunity Program.” It is composed, essentially, of two parts, a tuition grant program and a tax benefit program. Section 2 establishes a limited plan providing tuition reimbursements to parents of children attending elementary or secondary nonpublic schools.12 To qualify under this section a parent must have an annual taxable income of less than $5,000. The amount of reimbursement is limited to $50 for each grade school child and $100 for each high school child. Each parent is required, however, to submit to the Commissioner of Education a verified statement containing a receipted tuition bill, and the amount of state reimbursement may not exceed 50% of that figure. No restrictions are imposed on the use of the funds by the reimbursed parents.
This section, like § 1, is prefaced by a series of legislative findings designed to explain the impetus for the State‘s action. Expressing a dedication to the “vitality of our pluralistic society,” the findings state that a “healthy competitive and diverse alternative to public education is not only desirable but indeed vital to a state and nation that have continually reaffirmed the value of individual differences.”13 The findings further emphasize that the
The remainder of the “Elementary and Secondary Education Opportunity Program,” contained in §§ 3, 4, and 5 of the challenged law,17 is designed to provide a form of tax relief to those who fail to qualify for tuition reimbursement. Under these sections parents may subtract from their adjusted gross income for state income tax purposes a designated amount for each dependent for whom they have paid at least $50 in nonpublic school tuition. If the taxpayer‘s adjusted gross income is less than $9,000 he may subtract $1,000 for each of as many as three dependents. As the taxpayer‘s income rises, the amount he may subtract diminishes. Thus, if a taxpayer has adjusted gross income of $15,000, he may subtract only $400 per dependent, and if his adjusted gross income is
While the scheme of the enactment indicates that the purposes underlying the promulgation of the tuition reimbursement program should be regarded as pertinent as well to these tax law sections, § 3 does contain an additional series of legislative findings. Those findings may be summarized as follows: (i) contributions to religious, charitable and educational institutions are already deductible from gross income; (ii) nonpublic educational institutions are accorded tax exempt status; (iii) such institutions provide education for children attending them and also serve to relieve the public school systems of the burden of providing for their education; and, therefore, (iv) the “legislature... finds and determines that similar modifications... should also be provided to parents for tuition paid to nonpublic elementary and secondary schools on behalf of their dependents.”20
Although no record was developed in these cases, a number of pertinent generalizations may be made about the nonpublic schools which would benefit from these enactments. The District Court, relying on findings in a similar case recently decided by the same court,21 adopted a profile of these sectarian, nonpublic schools similar to the one suggested in the plaintiffs’ complaint. Qualifying institutions, under all three segments of the enactment, could be ones that
“(a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doc-
trine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach.” 350 F. Supp. 655, 663.
Of course, the characteristics of individual schools may vary widely from that profile. Some 700,000 to 800,000 students, constituting almost 20% of the State‘s entire elementary and secondary school population, attend over 2,000 nonpublic schools, approximately 85% of which are church affiliated. And while “all or practically all” of the 280 schools22 entitled to receive “maintenance and repair” grants “are related to the Roman Catholic Church and teach Catholic religious doctrine to some degree,” id., at 661, institutions qualifying under the remainder of the statute include a substantial number of Jewish, Lutheran, Episcopal, Seventh Day Adventist, and other church-affiliated schools.23
Plaintiffs argued below that because of the substantially religious character of the intended beneficiaries, each of the State‘s three enactments offended the Establishment Clause. The District Court, in an opinion carefully canvassing this Court‘s recent precedents, held
The history of the Establishment Clause has been recounted frequently and need not be repeated here. See Everson v. Board of Education, 330 U.S. 1 (1947); id., at 28 (Rutledge, J., dissenting);28 McCollum v. Board
Most of the cases coming to this Court raising Establishment Clause questions have involved the relationship between religion and education. Among these religion-education precedents, two general categories of cases may be identified: those dealing with religious activities within the public schools,29 and those involving public aid in varying forms to sectarian educational institutions.30 While the New York legislation places this case in the latter category, its resolution requires consideration not only of the several aid-to-sectarian-education cases, but also of our other education precedents and of several important noneducation cases. For the now well-defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establishment Clause cases. Taken together,
In applying these criteria to the three distinct forms of aid involved in this case, we need touch only briefly on the requirement of a “secular legislative purpose.” As the recitation of legislative purposes appended to New York‘s law indicates, each measure is adequately supported by legitimate, nonsectarian state interests. We do not question the propriety, and fully secular content, of New York‘s interest in preserving a healthy and safe educational environment for all of its schoolchildren. And we do not doubt—indeed, we fully recognize—the validity of the State‘s interests in promoting pluralism and diversity among its public and nonpublic schools. Nor do we hesitate to acknowledge the reality of its concern for an already overburdened public school system that might suffer in the event that a significant percentage of children presently attending nonpublic schools should abandon those schools in favor of the public schools.
A
The “maintenance and repair” provisions of § 1 authorize direct payments to nonpublic schools, virtually all of which are Roman Catholic schools in low-income areas. The grants, totaling $30 or $40 per pupil depending on the age of the institution, are given largely without restriction on usage. So long as expenditures do not exceed 50% of comparable expenses in the public school system, it is possible for a sectarian elementary or secondary school to finance its entire “maintenance and repair” budget from state tax-raised funds. No attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions. Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facilities. Absent appropriate restrictions on expenditures for these and similar purposes, it simply cannot be denied that this section has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools.
The state officials nevertheless argue that these expenditures for “maintenance and repair” are similar to other financial expenditures approved by this Court.
These cases simply recognize that sectarian schools perform secular, educational functions as well as religious functions, and that some forms of aid may be channeled to the secular without providing direct aid to the sectarian. But the channel is a narrow one, as the above cases illustrate. Of course, it is true in each case that the provision of such neutral, nonideological aid, assisting only the secular functions of sectarian schools, served indirectly and incidentally to promote the religious function by rendering it more likely that children would attend sectarian schools and by freeing the budgets of those schools for use in other nonsecular areas. But an indirect and incidental effect beneficial to religious institutions has never been thought a sufficient defect to warrant the invalidation of a state law. In McGowan v. Maryland,
Tilton draws the line most clearly. While a bare majority was there persuaded, for the reasons stated in the plurality opinion and in MR. JUSTICE WHITE‘S concurrence, that carefully limited construction grants to colleges and universities could be sustained, the Court was unanimous in its rejection of one clause of the federal statute in question. Under that clause, the Government was entitled to recover a portion of its grant to a sectarian institution in the event that the constructed facility was used to advance religion by, for instance, converting the building to a chapel or otherwise allowing it to be “used to promote religious interests.” 403 U. S., at 683. But because the statute provided that the condition would expire at the end of 20 years, the facilities would thereafter be available for use by the institution for any sectarian purpose. In striking down this provision, the plurality opinion emphasized that “[l]imiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that period.” Ibid. And in that event, “the original federal grant will in part have the effect of advancing religion.” Ibid. See also id., at 692 (DOUGLAS, J., dissenting in part), 659-661 (separate opinion of BRENNAN, J.), 665 n. 1 (WHITE, J., concurring in judgment). If tax-raised funds may not be granted to institutions of higher learning where the possibility exists that those funds will be used to construct a facility utilized for sectarian activities 20 years hence, a fortiori they
It might be argued, however, that while the New York “maintenance and repair” grants lack specifically articulated secular restrictions, the statute does provide a sort of statistical guarantee of separation by limiting grants to 50% of the amount expended for comparable services in the public schools. The legislature‘s supposition might have been that at least 50% of the ordinary public school maintenance and repair budget would be devoted to purely secular facility upkeep in sectarian schools. The shortest answer to this argument is that the statute itself allows, as a ceiling, grants satisfying the entire “amount of expenditures for maintenance and repair of such school” providing only that it is neither more than $30 or $40 per pupil nor more than 50% of the comparable
“The Rhode Island Legislature has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline
Nor could the State of Rhode Island have prevailed by simply relying on the assumption that, whatever a secular teacher‘s inabilities to refrain from mixing the religious with the secular, he would surely devote at least 15% of his efforts to purely secular education, thus exhausting the state grant. It takes little imagination to perceive the extent to which States might openly subsidize parochial schools under such a loose standard of scrutiny. See also Tilton v. Richardson, supra.36
What we have said demonstrates that New York‘s maintenance and repair provisions violate the Establishment Clause because their effect, inevitably, is to subsidize and advance the religious mission of sectarian
B
New York‘s tuition reimbursement program also fails the “effect” test, for much the same reasons that govern its maintenance and repair grants. The state program is designed to allow direct, unrestricted grants of $50 to $100 per child (but no more than 50% of tuition actually paid) as reimbursement to parents in low-income brackets who send their children to nonpublic schools, the bulk of which is concededly sectarian in orientation. To qualify, a parent must have earned less than $5,000 in taxable income and must present a receipted tuition bill from a nonpublic school.
There can be no question that these grants could not, consistently with the Establishment Clause, be given directly to sectarian schools, since they would suffer from the same deficiency that renders invalid the grants for maintenance and repair. In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid. As Mr. Justice Black put it quite simply in Everson:
“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.” 330 U. S., at 16.
In Everson, the Court found the bus fare program analogous to the provision of services such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools. 330 U. S., at 17-18. Such services,
Because of the manner in which we have resolved the tuition grant
The tuition grants here are subject to no such restrictions. There has been no endeavor “to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former.” Lemon v. Kurtzman, supra, at 613. Indeed, it is precisely the function of New York‘s law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid—to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools—are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.39
Mr. Justice Black, dissenting in Allen, warned that
“[i]t requires no prophet to foresee that on the argument used to support this law others could be up-
It may assist in providing a historical perspective to recall that the argument here is not a new one. The Preamble to Patrick Henry‘s Bill Establishing a Provision for Teachers of the Christian Religion, which would have required Virginians to pay taxes to support religious teachers and which became the focal point of Madison‘s Memorial and Remonstrance, see n. 28, supra, contained the following listing of secular purposes:
“[T]he general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve
held providing for state or federal government funds to buy property on which to erect religious school buildings or to erect the buildings themselves, to pay the salaries of the religious school teachers, and finally to have the sectarian religious groups cease to rely on voluntary contributions of members of their sects while waiting for the Government to pick up all the bills for the religious schools.” 392 U. S., at 253.
His fears regarding religious buildings and religious teachers have not come to pass, Tilton v. Richardson, supra; Lemon v. Kurtzman, supra, and insofar as tuition grants constitute a means of “pick[ing] up . . . the bills for the religious schools,” neither has his greatest fear materialized. But the ingenious plans for channeling state aid to sectarian schools that periodically reach this Court abundantly support the wisdom of Mr. Justice Black‘s prophecy.
Although we think it clear, for the reasons above stated, that New York‘s tuition grant program fares no better under the “effect” test than its maintenance and repair program, in view of the novelty of the question we will address briefly the subsidiary arguments made by the state officials and intervenors in its defense.
First, it has been suggested that it is of controlling significance that New York‘s program calls for reimbursement for tuition already paid rather than for direct contributions which are merely routed through the parents to the schools, in advance of or in lieu of payment
the peace of society. . . .” Everson v. Board of Education, 330 U. S., at 72 (Appendix to dissent of Rutledge, J.). Such secular objectives, no matter how desirable and irrespective of whether judges might possess sufficiently sensitive calipers to ascertain whether the secular effects outweigh the sectarian benefits, cannot serve today any more than they could 200 years ago to justify such a direct and substantial advancement of religion.
“Thus the short, and to me sufficient, answer is that the availability of excusal or exemption simply has no relevance to the establishment question, if it is once found that these practices are essentially religious exercises designed at least in part to achieve religious aims. . . .” Id., at 288.
A similar inquiry governs here: if the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions.40 Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same. In sum, we agree with
Second, the Majority Leader and President pro tem of the State Senate argues that it is significant here that the tuition reimbursement grants pay only a portion of the tuition bill, and an even smaller portion of the religious school‘s total expenses. The New York statute limits reimbursement to 50% of any parent‘s actual outlay. Additionally, intervenor estimates that only 30% of the total cost of nonpublic education is covered by tuition payments, with the remaining coming from “voluntary contribution, endowments and the like.”41 On the basis of these two statistics, appellees reason that the “maximum tuition reimbursement by the State is thus only 15% of educational costs in the nonpublic schools.”42 And, “since the compulsory education laws of the State, by necessity require significantly more than 15% of school time to be devoted to teaching secular courses,” the New York statute provides “a statistical guarantee of neutrality.”43 It should readily be seen that this is simply another variant of the argument we have rejected as to maintenance and repair costs, supra, at 777-779, and it can fare no better here. Obviously, if accepted, this argument would provide the foundation for massive, direct subsidization of sectarian elementary and secondary schools.44 Our cases, however, have long since foreclosed
Finally, the State argues that its program of tuition grants should survive scrutiny because it is designed to promote the free exercise of religion. The State notes that only “low-income parents” are aided by this law, and without state assistance their right to have their children educated in a religious environment “is diminished or even denied.”45 It is true, of course, that this Court has long recognized and maintained the right to choose nonpublic over public education. Pierce v. Society of Sisters, 268 U. S. 510 (1925). It is also true that a state law interfering with a parent‘s right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause. But this Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses, e. g., Everson v. Board of Education, supra; Walz v. Tax Comm‘n, supra, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of “neutrality,” neither “advancing” nor “inhibiting” religion.46 In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one “advancing” religion. However great our sympathy, Everson v. Board of Education, 330 U. S., at 18 (Jackson, J., dissenting), for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because
C
Sections 3, 4, and 5 establish a system for providing income tax benefits to parents of children attending New York‘s nonpublic schools. In this Court, the parties have engaged in a considerable debate over what label best fits the New York law. Appellants insist that the law is, in effect, one establishing a system of tax “credits.” The State and the intervenors reject that characterization and would label it, instead, a system of income tax “modifications.” The Solicitor General, in an amicus curiae brief filed in this Court, has referred throughout to the New York law as one authorizing tax “deductions.” The District Court majority found that the aid was “in effect a tax credit,” 350 F. Supp., at 672 (emphasis in original). Because of the peculiar nature of the benefit allowed, it is difficult to adopt any single traditional label lifted from the law of income taxation. It is, at least in its form, a tax deduction since it is an amount subtracted from adjusted gross income, prior to computation of the tax due. Its effect, as the District Court concluded, is more like that of a tax credit since the deduction is not related to the amount actually spent for tuition and is apparently designed to yield a predetermined amount of tax “forgiveness” in exchange for performing a specific act which the State desires to encourage—the usual attribute of a tax credit. We see no reason to select one label over another, as the constitutionality of this hybrid benefit does not turn in any event on the label we accord it. As MR. CHIEF JUSTICE BURGER‘S opinion for the Court in Lemon v. Kurtzman, 403 U. S., at 614, notes, constitu-
These sections allow parents of children attending nonpublic elementary and secondary schools to subtract from adjusted gross income a specified amount if they do not receive a tuition reimbursement under § 2, and if they have an adjusted gross income of less than $25,000. The amount of the deduction is unrelated to the amount of money actually expended by any parent on tuition, but is calculated on the basis of a formula contained in the statute.47 The formula is apparently the product of a legislative attempt to assure that each family would receive a carefully estimated net benefit, and that the tax benefit would be comparable to, and compatible with, the tuition grant for lower income families. Thus, a parent who earns less than $5,000 is entitled to a tuition reimbursement of $50 if he has one child attending an elementary, nonpublic school, while a parent who earns more (but less than $9,000) is entitled to have a precisely equal amount taken off his tax bill.48 Additionally, a taxpayer‘s benefit under these sections is unrelated to, and not reduced by, any deductions to which he may be entitled for charitable contributions to religious institutions.49
In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax
Appellees defend the tax portion of New York‘s legislative package on two grounds. First, they contend that it is of controlling significance that the grants or credits are directed to the parents rather than to the schools. This is the same argument made in support of the tuition reimbursements and rests on the same reading of the same precedents of this Court, primarily Everson and Allen. Our treatment of this issue in Part II-B, supra, at 780-785, is applicable here and requires rejection of this claim.50 Second, appellees place their strongest reliance on Walz v. Tax Comm‘n, supra, in which New York‘s property tax exemption for religious organizations was upheld. We think that Walz provides no support for appellees’ position. Indeed, its rationale plainly compels the conclusion that New York‘s tax package violates the Establishment Clause.
But historical acceptance without more would not alone have sufficed, as “no one acquires a vested or protected right in violation of the Constitution by long use.” Walz, 397 U. S., at 678. It was the reason underlying that long history of tolerance of tax exemptions for religion that proved controlling. A proper respect for both the Free Exercise and the Establishment Clauses compels the State
Apart from its historical foundations, Walz is a product of the same dilemma and inherent tension found in most government-aid-to-religion controversies. To be sure, the exemption of church property from taxation conferred a benefit, albeit an indirect and incidental one. Yet that “aid” was a product not of any purpose to support or to subsidize, but of a fiscal relationship designed to minimize involvement and entanglement between Church and State. “The exemption,” the Court emphasized, “tends to complement and reinforce the desired separation insulating each from the other.” Id., at 676. Furthermore, “[e]limination of the exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes.” Id., at 674. The granting of the tax benefits under the New York statute, unlike the extension of an exemption, would tend to increase rather than limit the involvement between Church and State.
One further difference between tax exemptions for church property and tax benefits for parents should be
In conclusion, we find the Walz analogy unpersuasive, and in light of the practical similarity between New York‘s tax and tuition reimbursement programs, we hold that neither form of aid is sufficiently restricted to assure that it will not have the impermissible effect of advancing the sectarian activities of religious schools.
III
Because we have found that the challenged sections have the impermissible effect of advancing religion, we need not consider whether such aid would result in entanglement of the State with religion in the sense of “[a] comprehensive, discriminating, and continuing state surveillance.” Lemon v. Kurtzman, 403 U. S., at 619. But the importance of the competing societal interests implicated here prompts us to make the further observation that, apart from any specific entanglement of the State in particular religious programs, assistance of the sort here involved carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion.
These, in briefest summary, are the underlying reasons for the New York legislation and for similar legislation in other States. They are substantial reasons. Yet they must be weighed against the relevant provisions and purposes of the First Amendment, which safeguard the separation of Church from State and which have been regarded from the beginning as among the most cherished features of our constitutional system.
One factor of recurring significance in this weighing process is the potentially divisive political effect of an aid program. As Mr. Justice Black‘s opinion in Everson
The Court recently addressed this issue specifically and fully in Lemon v. Kurtzman. After describing the political activity and bitter differences likely to result from the state programs there involved, the Court said:
“The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow.” 403 U. S., at 623.54
The language of the Court applies with peculiar force to the New York statute now before us.
Our examination of New York’s aid provisions, in light of all relevant considerations, compels the judgment that each, as written, has a “primary effect that advances religion” and offends the constitutional prohibition against laws “respecting an establishment of religion.” We therefore affirm the three-judge court’s holding as to
It is so ordered.
MR. CHIEF JUSTICE BURGER, joined in part by MR. JUSTICE WHITE, and joined by MR. JUSTICE REHNQUIST, concurring in part and dissenting in part.*
I join in that part of the Court’s opinion in Committee for Public Education & Religious Liberty v. Nyquist, ante, p. 756, which holds the New York “maintenance and repair” provision1 unconstitutional under the Establishment Clause because it is a direct aid to religion. I disagree, however, with the Court’s decisions in Nyquist and in Sloan v. Lemon, post, p. 825, to strike down the New York and Pennsylvania tuition grant programs and the New York tax relief provisions.2 I believe the Court’s decisions on those statutory provisions ignore the teachings of Everson v. Board of Education, 330 U. S. 1 (1947),
While there is no straight line running through our decisions interpreting the Establishment and Free Exercise Clauses of the
Twenty-one years later, in Board of Education v. Allen, supra, the Court again upheld a state program that provided for direct aid to the parents of all schoolchildren including those in private schools. The statute there required “local public school authorities to lend textbooks free of charge to all students in grades seven through 12; students attending private schools [were] included.” 392 U. S., at 238. Recognizing that Everson was the case “most nearly in point,” the Allen Court interpreted Everson as holding that “the Establishment
“Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools.” Id., at 243-244 (emphasis added).
The Court’s opinions in both Everson and Allen recognized that the statutory programs at issue there may well have facilitated the decision of many parents to send their children to religious schools. Everson v. Board of Education, supra, at 17-18; Board of Education v. Allen, supra, at 242, 244. See Norwood v. Harrison, ante, at 463 n. 6 (1973). Indeed, the Court in both cases specifically acknowledged that some children might not obtain religious instruction but for the benefits provided by the State. Notwithstanding, the Court held that such an indirect or incidental “benefit” to the religious institutions that sponsored parochial schools was not a conclusive indicium of a “law respecting an establishment of religion.”4
“But we cannot concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the Government is necessarily undenominational, as it cannot make any law respecting an establishment of religion or prohibiting the free exercise thereof.” Id., at 81-82.
The essence of all these decisions, I suggest, is that government aid to individuals generally stands on an entirely different footing from direct aid to religious institutions. I say “generally” because it is obviously possible to conjure hypothetical statutes that constitute either a subterfuge for direct aid to religious institutions or a discriminatory enactment favoring religious over nonreligious activities. Thus, a State could not enact a statute providing for a $10 gratuity to everyone who attended religious services weekly. Such a law would plainly be governmental sponsorship of religious activities; no statutory preamble expressing purely sec-
This fundamental principle which I see running through our prior decisions in this difficult and sensitive field of law, and which I believe governs the present cases, is premised more on experience and history than on logic. It is admittedly difficult to articulate the reasons why a State should be permitted to reimburse parents of private school children—partially at least—to take into account the State’s enormous savings in not having to provide schools for those children, when a State is not allowed to pay the same benefit directly to sectarian schools on a per-pupil basis. In either case, the private individual makes the ultimate decision that may indirectly benefit church-sponsored schools; to that extent the state involvement with religion is substantially attenuated. The answer, I believe, lies in the experienced judgment of various members of this Court over the years that the balance between the policies of free exercise and establishment of religion tips in favor of the former when the legislation moves away from direct aid to religious institutions and takes on the character of general aid to individual families. This judgment reflects the caution with which we scrutinize any effort to give official support to religion and the tolerance with which we treat general welfare legislation. But, whatever its
The tuition grant and tax relief programs now before us are, in my view, indistinguishable in principle, purpose, and effect from the statutes in Everson and Allen. In the instant cases as in Everson and Allen, the States have merely attempted to equalize the costs incurred by parents in obtaining an education for their children. The only discernible difference between the programs in Everson and Allen and these cases is in the method of the distribution of benefits: here the particular benefits of the Pennsylvania and New York statutes are given only to parents of private school children, while in Everson and Allen the statutory benefits were made available to parents of both public and private school children. But to regard that difference as constitutionally meaningful is to exalt form over substance. It is beyond dispute that the parents of public school children in New York and Pennsylvania presently receive the “benefit” of having their children educated totally at state expense; the statutes enacted in those States and at issue here merely attempt to equalize that “benefit” by giving to parents of private school children, in the form of dollars or tax deductions, what the parents of public school children receive in kind. It is no more than simple equity to grant partial relief to parents who support the public schools they do not use.
The Court appears to distinguish the Pennsylvania and New York statutes from Everson and Allen on the ground that here the state aid is not apportioned between the religious and secular activities of the sectarian schools attended by some recipients, while in Everson and Allen the state aid was purely secular in nature. But that distinction has not been followed in the past, see Quick Bear v. Leupp, supra, and is not likely to be considered
Since I am unable to discern in the Court’s analysis of Everson and Allen any neutral principle to explain the result reached in these cases, I fear that the Court has in reality followed the unsupportable approach of measuring the “effect” of a law by the percentage of the recipients who choose to use the money for religious, rather than secular, education. Indeed, in discussing the New York tax credit provisions, the Court’s opinion argues that the “tax reductions authorized by this law flow primarily to the parents of children attending sectarian, nonpublic schools.” Ante, at 794. While the opinion refrains from “intimating whether this factor alone might have controlling significance in another context in some future case,” ibid., similar references to this factor elsewhere in the Court’s opinion suggest that it has been given considerable weight. Thus, the Court observes as to the New York tuition grant program: “Indeed, it is precisely the function of New York’s law to provide assistance to private schools, the great majority of which are sectarian.” Ante, at 783 (emphasis added).
With all due respect, I submit that such a consideration is irrelevant to a constitutional determination of the “effect” of a statute. For purposes of constitutional adjudication of that issue, it should make no difference whether 5%, 20%, or 80% of the beneficiaries of an educational program of general application elect to utilize their benefits for religious purposes. The “primary effect” branch of our three-pronged test was never, at least to my understanding, intended to vary with the
Such a consideration, it is true, might be relevant in ascertaining whether the primary legislative purpose was to advance the cause of religion. But the Court has, and I think correctly, summarily dismissed the contention that either New York or Pennsylvania had an improper purpose in enacting these laws. The Court fully recognizes that the legislatures of New York and Pennsylvania have a legitimate interest in “promoting pluralism and diversity among . . . public and nonpublic schools,” ante, at 773, in assisting those who reduce the State’s expenses in providing public education, and in protecting the already overburdened public school system against a massive influx of private school children. And in light of this Court’s recognition of these secular legislative purposes, I fail to see any acceptable resolution to these cases except one favoring constitutionality.
I would therefore uphold these New York and Pennsylvania statutes. However sincere our collective protestations of the debt owed by the public generally to the parochial school systems, the wholesome diversity they engender will not survive on expressions of good will.
MR. JUSTICE WHITE joins this opinion insofar as it relates to the New York and Pennsylvania tuition grant statutes and the New York tax relief statute.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE WHITE concur, dissenting in part.
Differences of opinion are undoubtedly to be expected when the Court turns to the task of interpreting the meaning of the Religion Clauses of the
I
The opinions in Walz, supra, make it clear that tax deductions and exemptions, even when directed to religious institutions, occupy quite a different constitutional status under the Religion Clauses of the
“The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees ‘on the public payroll.’ There is no genuine nexus between tax exemption and establishment of religion.” 397 U. S., at 675 (emphasis added).
MR. JUSTICE BRENNAN in his concurring opinion amplified the distinction between tax benefits and direct payments in these words:
“Tax exemptions and general subsidies, however, are qualitatively different. Though both provide
economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. . . . Tax exemptions, accordingly, constitute mere passive state involvement with religion and not the affirmative involvement characteristic of outright governmental subsidy.” Id., at 690-691 (footnotes omitted).
Here the effect of the tax benefit is trebly attenuated as compared with the outright exemption considered in Walz. There the result was a complete forgiveness of taxes, while here the result is merely a reduction in taxes. There the ultimate benefit was available to an actual house of worship, while here even the ultimate benefit redounds only to a religiously sponsored school. There the churches themselves received the direct reduction in the tax bill, while here it is only the parents of the children who are sent to religiously sponsored schools who receive the direct benefit.
The Court seeks to avoid the controlling effect of Walz by comparing its historical background to the relative recency of the challenged deduction plan; by noting that in its historical context, a property tax exemption is religiously neutral, whereas the educational cost deduction here is not; and by finding no substantive difference between a direct reimbursement from the State to parents and the State’s abstention from collecting the full tax bill which the parents would otherwise have had to pay.
While it is true that the Court reached its result in Walz in part by examining the unbroken history of property tax exemptions for religious organizations in this country, there is no suggestion in the opinion that only those particular tax exemption schemes that have roots in pre-Revolutionary days are sustainable against an
But what the Court gives in the form of dicta with one hand, it takes away in the form of its holding with the other. For if long-established use of a particular tax exemption scheme leads to a holding that the scheme is constitutional, that holding should extend equally to newly devised tax benefit plans which are indistinguishable in principle from those long established.
The Court’s statements that “[s]pecial tax benefits, however, cannot be squared with the principle of neutrality established by the decisions of this Court,” ante, at 793, and that “insofar as such benefits render assistance to parents who send their children to sectarian schools, their purpose and inevitable effect are to aid and advance those religious institutions,” ibid., are impossible to reconcile with Walz. Who can doubt that the tax exemptions which that case upheld were every bit as much of a “special tax benefit” as the New York tax deduction plan here, or that the benefits resulting from the exemption in Walz had every bit as much tendency to “aid and advance . . . religious institutions” as did New York’s plan here?
The Court nonetheless declares that what has been authorized by the legislature is not a true deduction and in substance provides an incentive for parents to send their children to sectarian schools because the amount deductible from adjusted gross income bears no relationship to amounts actually expended for nonpublic education. Support for its notion that the authorization is essentially the same as a tax credit or a reimbursement is drawn from the fact that the net benefit under the
The sole difference between the flat-rate exemptions currently in widespread use and the deduction established in
II
In striking down both plans, the Court places controlling weight on the fact that the State has not pur-
In Everson, supra, the Court sustained the constitutional validity of a New Jersey statute and resulting school board regulation that provided, in part, for the direct reimbursement to parents of children attending sectarian schools of amounts expended in providing public transportation to and from such schools. Expressly noting that the challenged regulation undoubtedly helped children to get to church schools and that
“[t]here is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State . . . ,” 330 U. S., at 17,
the majority in an opinion written by Mr. Justice Black held that the state scheme did not violate the Establishment Clause. And it was emphasized that the State in that case contributed no money to the schools, id., at 18; rather it did no more than effectuate a secular purpose—the transportation of children safely and expeditiously to and from accredited schools.
Similarly in Allen, supra, a state program whereby secular textbooks were loaned to all children in accredited schools was approved as consistent with the Establishment Clause, even though the Court recognized that free books made it more likely that some children would choose to attend a sectarian school. 392 U. S., at 244. It was again emphasized that “no funds or books [were] fur-
“The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for in both those cases the Court was careful to point out that state aid was provided to the student and his parents—not to the church-related school. . . .” (Emphasis added.)
Both Everson and Allen gave significant recognition to the “benevolent neutrality” concept, and the Court was guided by the fact that any effect from state aid to parents has a necessarily attenuated impact on religious institutions when compared to direct aid to such institutions.
The reimbursement and tax benefit plans today struck down, no less than the plans in Everson and Allen, are consistent with the principle of neutrality. New York has recognized that parents who are sending their children to nonpublic schools are rendering the State a service by decreasing the costs of public education and by physically relieving an already overburdened public school system. Such parents are nonetheless compelled to support public school services unused by them and to pay for their own children’s education. Rather than offering “an incentive to parents to send their children to sectarian schools,” ante, at 786, as the majority suggests, New York is effectuating the secular purpose of the equalization of the cost of educating New York children that are borne by parents who send their children to nonpublic schools. As in Everson and Allen, the impact, if any, on religious
The increasing difficulties faced by private schools in our country are no reason at all for this Court to readjust the admittedly rough-hewn limits on governmental involvement with religion which are found in the
MR. JUSTICE WHITE, joined in part by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, dissenting.*
Each of the States regards the education of its young to be a critical matter—so much so that it compels school attendance and provides an educational system at public expense. Any otherwise qualified child is entitled to a free elementary and secondary school education, or at least an education that costs him very little as compared with its cost to the State.
This Court has held, however, that the Due Process Clause of the
In light of the Free Exercise Clause of the
Historically, the States of the Union have not furnished public aid for education in private schools. But in the last few years, as private education, particularly the parochial school system, has encountered financial difficulties, with many schools being closed and many more apparently headed in that direction, there has developed a variety of programs seeking to extend at least some aid to private educational institutions. Some States have provided only fringe benefits or auxiliary services. Others attempted more extensive efforts to keep the private school system alive. Some made direct arrangements with private and parochial schools for the purchase of secular educational services furnished by those schools.1 Others provided tuition grants to parents sending their children to private schools, permitted dual enrollments or shared-time arrangements or extended substantial tax benefits in some form.2
Nonpublic school enrollment has dropped at the rate of 6% per year for the past five years. Projected to 1980, it is estimated that seven States (the eight mentioned in the text less Massachusetts) will lose 1,416,122 nonpublic school students. Whatever the reasons, there has been, and there probably will continue to be, a movement to the public schools, with the prospect of substantial increases
I am quite unreconciled to the Court’s decision in Lemon v. Kurtzman, 403 U. S. 602 (1971). I thought then, and I think now, that the Court’s conclusion there was not required by the
No one contends that he can discern from the sparse language of the Establishment Clause that a State is forbidden to aid religion in any manner whatsover or, if it does not mean that, what kind of or how much aid is permissible. And one cannot seriously believe that the history of the
The course of these decisions has made it clear that the
The Court thus has not barred all aid to religion or to religious institutions. Rather, it has attempted to devise a formula that would help identify the kind and degree of aid that is permitted or forbidden by the Establishment Clause. Until 1970, the test for compliance with the Clause was whether there was “a secular legislative purpose and a primary effect that neither advances nor inhibits religion . . .“; given a secular purpose, what is “the primary effect of the enactment?” School District of Abington Township v. Schempp, 374 U. S. 203, 222 (1963); Board of Education v. Allen, supra, at 243. In 1970, a third element surfaced—whether there is “an
But whatever may be the weight and contours of entanglement as a separate constitutional criterion, it is of remote relevance in the cases before us with respect to the validity of tuition grants or tax credits involving or requiring no relationships whatsoever between the State and any church or any church school. So, also, the Court concedes the State’s genuine secular purpose underlying these statutes. It therefore necessarily arrives at the remaining consideration in the threefold test which is apparently accepted from prior cases: Whether the law in question has “a primary effect that neither advances nor inhibits religion.” School District of Abington Township v. Schempp, supra. While purporting to
There is no doubt here that Pennsylvania and New York have sought in the challenged laws to keep their parochial schools system alive and capable of providing adequate secular education to substantial numbers of students. This purpose satisfies the Court, even though to rescue schools that would otherwise fail will inevitably enable those schools to continue whatever religious functions they perform. By the same token, it seems to me, preserving the secular functions of these schools is the overriding consequence of these laws and the resulting,
At the very least I would not strike down these statutes on their face. The Court’s opinion emphasizes a particular kind of parochial school, one restricted to students of particular religious beliefs and conditioning attendance on religious study. Concededly, there are many parochial schools that do not impose such restrictions. Where they do not, it is even more difficult for me to understand why the primary effect of these statutes is to advance religion. I do not think it is and therefore dissent from the Court’s judgment invalidating the challenged New York and Pennsylvania statutes.
THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join this opinion insofar at it relates to the New York and Pennsylvania tuition grant statutes and the New York tax credit statute.
Notes
Direct Aid Programs:
Parental Grants or Reimbursement Schemes: 5 States (including New York and Pennsylvania).
Dual Enrollment (Shared Time): 9 States.
Tax Credits: 6 States (including New York).
Leasing of Nonpublic School Facilities by Public School Systems: 4 States.
Educational Opportunities for Rural Students: 1 State (Alaska).
Innovative Programs: 1 State (Illinois).
Exemption from State Sales Tax for Educational and Janitorial Supplies: 1 State (North Dakota).
Auxiliary Services or Benefits:
Transportation: 24 States plus District of Columbia.
Textbooks and Instructional Materials: 14 States.
Health and Welfare Services (i. e., school physician, nurse, dental services, hygienist, psychologist, speech therapist, social worker, etc.): 15 States.
Driver Education: 7 States (applies only to dually enrolled students in South Dakota).
Services for Educationally Disadvantaged Children, Educational Testing, and Miscellaneous (principally aid services for deaf, blind, handicapped, or retarded children; educational testing; remedial programs, etc.): 11 States.
School Lunches: 2 States (New York and Louisiana).
Released Time: 2 States (Michigan and South Dakota).
Vocational Education: 2 States (Ohio and California).
Central Purchasing of Supplies: 2 States (Oregon and Washington).
Participation of Lay Teachers in Non-Public Schools in Public School Teachers Retirement Fund Scheme: 1 State (North Dakota).
A total of 16 States now extend one or more types of direct aid. 33 States, including almost all of the foregoing 16, offer auxiliary services or benefits. At least 19 States have constitutional or statutory barriers to any kind of direct aid to parochial schools.
| City | Nonpublic enrollment | Percentage of total |
|---|---|---|
| New York | 358,594 | 24.3 |
| Chicago | 208,174 | 27.3 |
| Philadelphia | 146,298 | 33.6 |
| Detroit | 58,228 | 16.5 |
| Los Angeles | 43,601 | 6.3 |
| New Orleans | 41,938 | 27.2 |
| Cleveland | 36,922 | 19.4 |
| Pittsburgh | 36,661 | 19.4 |
| Buffalo | 36,623 | 33.8 |
| Boston | 35,237 | 27.1 |
| Baltimore | 33,833 | 15.0 |
| Cincinnati | 32,653 | 27.4 |
| Milwaukee | 32,256 | 19.8 |
| San Francisco | 29,582 | 23.9 |
| St. Paul | 22,267 | 30.3 |
New York
A. Full tuition and board for deaf and blind children educated at state-approved nonpublic schools.
B. Tuition (up to $2,000) for handicapped children educated at nonpublic schools.
C. Teacher salary payments to nonpublic schools operated by incorporated orphan asylum societies.
D. Omnibus Education Act.
1. Health and safety grants for nonpublic schools qualifying under Title IV of the Higher Education Act of 1965 as serving areas with high concentrations of poverty families.
2. Tuition assistance grants for parents with taxable incomes under $5,000.
3. Tax credit assistance for parents with incomes from $9,000-$25,000.
E. Mandated Services Act.
1. Reimbursement of nonpublic schools for costs of fulfilling state administrative requirements.
Pennsylvania
A. Dual enrollment.
B. Parent Reimbursement Act.
1. Reimbursement of parents for actual costs of nonpublic education of their children up to $75 for elementary school students and $150 for secondary school students.
Illinois
A. Grants to children from poverty families for actual costs of nonpublic education up to amount of state aid child would receive if attending public school.
B. Special grants for innovative programs.
California
A. Tax credit assistance for parents with incomes ranging to $19,000. Maximum credit is $125 per child per year in nonpublic school.
Ohio
A. Dual enrollment with respect to vocational training.
B. Tax credit assistance for parents of nonpublic school students up to $90 per child per year.
New Jersey
No direct aid.
Michigan
A. Released time.
B. Dual enrollment.
Recent state constitutional amendment precludes all other forms of direct aid.
Massachusetts
Direct aid is barred by state constitutional provision.
The estimated 1970 population (in thousands) of Catholics in relation to the total population in each of these eight States was as follows:
| Total Population | Estimated Catholics | Catholic/Total | |
|---|---|---|---|
| Massachusetts | 5,241 | 2,947 | 56.2% |
| New Jersey | 7,332 | 2,898 | 39.5% |
| New York | 18,361 | 6,558 | 35.7% |
| Pennsylvania | 11,871 | 3,658 | 30.8% |
| Illinois | 10,751 | 3,455 | 32.1% |
| Michigan | 9,433 | 2,383 | 25.3% |
| Ohio | 10,612 | 2,265 | 21.3% |
| California | 20,250 | 4,053 | 20.0% |
| If New York adjusted gross income is: | The amount allowable for each dependent is: |
| Less than $9,000 | $1,000 |
| 9,000-10,999 | 850 |
| 11,000-12,999 | 700 |
| 13,000-14,999 | 550 |
| 15,000-16,999 | 400 |
| 17,000-18,999 | 250 |
| 19,000-20,999 | 150 |
| 21,000-22,999 | 125 |
| 23,000-24,999 | 100 |
| 25,000 and over | -0- |
Estimated Net Benefit to Family
| If Adjusted Gross Income is | One child | Two children | Three or more |
| less than $9,000 | $50.00 | $100.00 | $150.00 |
| 9,000-10,999 | 42.50 | 85.00 | 127.50 |
| 11,000-12,999 | 42.00 | 84.00 | 126.00 |
| 13,000-14,999 | 38.50 | 77.00 | 115.50 |
| 15,000-16,999 | 32.00 | 64.00 | 96.00 |
| 17,000-18,999 | 22.50 | 45.00 | 67.50 |
| 19,000-20,999 | 15.00 | 30.00 | 45.00 |
| 21,000-22,999 | 13.75 | 27.50 | 41.25 |
| 23,000-24,999 | 12.00 | 24.00 | 36.00 |
| 25,000 and over | 0 | 0 | 0 |
But the Virginia Bill of Rights contained no prohibition against the Establishment of Religion, and the next eight years were marked by debate over the relationship between Church and State. In 1784, a bill sponsored principally by Patrick Henry, entitled A Bill Establishing a Provision for Teachers of the Christian Religion, was brought before the Virginia Assembly. The Bill, reprinted in full as an Appendix to Mr. Justice Rutledge‘s dissenting opinion in Everson v. Board of Education, 330 U.S. 1, 72-74 (1947), required all persons to pay an annual tax “for the support of Christian teachers” in order that the teaching of religion might be promoted. Each taxpayer was permitted under the Bill to declare which church he desired to receive his share of the tax. The Bill was not voted on during the 1784 session, and prior to the convening of the 1785 session Madison penned his Memorial and Remonstrance against Religious Assessments, outlining in 15 numbered paragraphs the reasons for his opposition to the Assessments Bill. The document was widely circulated and inspired such overwhelming opposition to the Bill that it died during the ensuing session without reaching a vote. Madison‘s Memorial and Remonstrance, recognized today as
one of the cornerstones of the First Amendment‘s guarantee of government neutrality toward religion, also provided the necessary foundation for the immediate consideration and adoption of Thomas Jefferson‘s Bill for Establishing Religious Freedom, which contained Virginia‘s first acknowledgment of the principle of total separation of Church and State. The core of that principle, as stated in the Bill, is that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever....” In Jefferson‘s perspective, so vital was this “wall of separation” to the perpetuation of democratic institutions that it was this Bill, along with his authorship of the Declaration of Independence and the founding of the University of Virginia, that he wished to have inscribed on his tombstone. Report of the Comm‘n on Constitutional Revision, The Constitution of Virginia 100-101 (1969).Both Madison‘s Bill of Rights provision on the free exercise of religion and Jefferson‘s Bill for Establishing Religious Freedom have remained in the Virginia Constitution, unaltered in substance, throughout that State‘s history. See
“These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. The imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation. It was these feelings which found expression in the First Amendment.” 330 U. S., at 11 (emphasis supplied).
“In order to meet proper health, welfare and safety standards in qualifying schools for the benefit of the pupils enrolled therein, there shall be apportioned health, welfare and safety grants by the commissioner to each qualifying school for the school years beginning on and after July first, nineteen hundred seventy-one, an amount equal to the product of thirty dollars multiplied by the average daily attendance of pupils receiving instruction in such school, to be applied for costs of maintenance and repair. Such apportionment shall be increased by ten dollars multiplied by the average daily attendance of pupils receiving instruction in a school building constructed prior to nineteen hundred forty-seven. In no event shall the per pupil annual allowance computed under this section exceed fifty per centum of the average per pupil cost of equivalent maintenance and repair in the public schools of the state on a state-wide basis, as determined by the commissioner, and in no event shall the apportionment to a qualifying school exceed the amount of expenditures for maintenance and repair of such school as reported pursuant to section five hundred fifty-two of this article.”
“The two legislatures . . . have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses.” 403 U. S., at 613.