*1 MANN OF HORACE LEAGUE THE UNITED THE AMERICA, INC. v. BOARD OF STATES et al. MARYLAND
OF OF WORKS al. PUBLIC et 356, September Term, [No. 1965.] *4 2, 1966. Decided June 22, 1966, 28, Motions June denied June rehearing filed 1966, 1966; motion denied rehearing July July filed
1966. *5 J.,C. and argued before Prescott, The cause was Ham- Marbury JJ., Oppenheimer, Keat- mond, Horney, Circuit, and J., Judge Associate Second Judicial ing, Circuit, Judge Associate J., Powers, Seventh Judicial assigned. both specially R. Walter J. and Melvin with whom Sykes,
Leo Pfeffer brief, for the Tabler on the appellants. General, Robert Finan, with whom were B. Attorney
Thomas General, Blan- L. Deputy Attorney C. Fdwatrd Murphy, brief, General, ton, on for the Board Attorney Assistant one of the Maryland, appellees. Public Works on Noonberg Lewis A. with whom was William Marbury, L. Hood College Notre Dame brief, for Joseph College, St. College, appellees. part Melvin, Jr., College, Maryland P. for Western
Ridgely other appellee. and /. Nicholas Tyler T. Shri- Gallagher, George X.
Francis Jr., an ver, College, appellee. Joseph on brief St. brief on the Constable George W. Scanlon L. Alfred College, appellee. an Notre Dame College, appellee. brief for Hood Parsons Newman on the *6 B n for the appel- Arthur of counsel on the brief Sutherland lees generally. Salisbury for
Brief of amicus curiae filed Franklin C. Separation Protestants and Americans United Other and Church State. of the Court.
Prescott, J., majority opinion C. delivered the Horney Dis- dissent in Hammond, Marbury, JJ., part. Hammond, senting J., at opinion by page infra.
After challenged dismissal of their bill of which complaint, the Federal and Constitu- validity, violating Maryland tions, statutes, matching of four separate providing outright, $2,500,000, buildings, for the construction of grants, totaling colleges to four The four private colleges, plaintiffs appealed. defendants; in- officials were named as appropriate public relief and a junctive grants declaration the effect that the were unlawful were prayed.
The involved been briefed questions argued have care, skill, signal counsel ability by respective par- ties. contend that lack to in- appellees appellants standing issue, the jurisdiction
voke of the courts. The principal course, is whether one statutes (or more) violates the First and Amendments Fourteеnth to the Federal Consti- tution, XXIII, XV, or Articles or XXXVI of our Declara- tion of Rights. concede that Appellants some of relation- degree to church or ship religion may exist an educational institu- “sectarian”; contend, however, tion without rendering they “substantial,” that when such a it renders the relationship institution sectarian and grants funds not con- public may stitutionally be made to it. Four of state that the appellees “are colleges involved related in admittedly varying degrees denominations,” particular religious but that there is no urge constitutional a state proscription against granting funds “public a sectarian nor is college, there in either constitu- anything tion which forbids for educational grants purposes colleges the- think relation to a church.” We bear a substantial is- these in which to consider sequence and efficacious
orderly for if the standing, question sues is first to determine next thereon, appeal; control the entire it will appellees prevail determining to the statutes the test to be applied to decide or impermissible- constitutionally permissible whether Amendment; facts test to the then to apply First under the finally colleges; the individual record in the pertaining the named sections violate grants whether to consider Constitution. Maryland OF PLAINTIFF. PARTIES STANDING THE
THE of the- Mann League the Horace held that The Chancellor It America, Inc., standing. agree. lacked We United States corporation and charitable Maryland educational is non-profit *7 and it, fostering for the purpose claimed by organized, system. American school public the strengthening view restrictive “took unduly It that the Chancellor argues to- formed of organizations jurisprudence of the status modern * * *,” several compare asks us to interest the protect public as a party, participated the N.A.A.C.P. Federal cases which thereto. We- articles relative law-review and to consider several same, would therein which nothing but find considered the have this Court. rulings former from the our departing warrant v. Committee ruling. in his Citizens was correct The Chancellor Dis 398; Bar v. Commissioners, Association 233 Md. County Co., Md. 474. trict Title individual standing appel- the of the challenge
Thе appellees “the miniscule dimensions grounds: (a) lants on two * * challenged programs stake the financial plaintiffs’ Mary- to educate required if were Maryland that (b) the cost colleges, attend the appellee who now land students under con- than the grants to the greater be much would sideration.
(a) . think, that the re we concede rightly appellees, Most Etc., Comptroller, v. 241 Md. Murray, decided case cently recently here. so 383, Having their argument undermines fatally it question, our conclusions on the enunciated considered and would be useless to elaborate further thereon. We gesture on this and the individual Murray controlling hold point, standing assigned. do not lack for the reasons there appellants
(b) There are number of to contention. shall answers this We name All agree but two. issues here parties pre- great sented are of When this is interest and concern. public case, necessary injury standing interest sustain institute a taxpayer’s suit is “broadly comprehensive” may In Baltimore Board “slight.” Liquor be Retail Ass’n v. Stores Comm’rs, License opinion Md. this Court stated its merits, on the even lacked technical stand- though plaintiffs For ing. other cases wherein there were similar holdings Comm’rs, recognized Committee principle County see Citizens v. Hammond, etc., supra; 462; Dut- Lancaster, v. 194 Md. Tames, v. ton 225 Md. agree 484. We with the that the parties interest, of general issues are urgent public they sufficient to invoke importance magnitude prin- the above if the factual situation rendered it so. ciple, do necessary However, we not find our do conclusion necessary base that the individual standing have the- appellants on above alone. In v. ory, Berghorn Reorganized District No. School 2d 260 W. 573 (Mo.), taxpayers’ standing S. to sue to pre- expenditures vent of state funds for schools was at- on ground challenged tacked that the would expenditure less plaintiffs cost than the taxes would required pay if the students at schools such were educated *8 schools. In public sustaining plaintiffs’ standing granting relief, the court stated:
“In determining taxpayer’s pecuniary re- injury funds, from unlawful sulting expenditure public we lawful may weigh expenditures unlaw- against no legal ful because expenditures, injury results from the lawful funds.” expenditures public agree the Missouri Court. Also We this compare Court’s Steedman, in McKeldin 203 Md. holding v. wherein although same was no principle applied, religious issue involved, Schempp, Dist. v. 374 U. Abington there School 203, n. 9. S. that if argue
Further on of standing, appellees the question court, in a Federal would appellants the suit had been instituted grants being have to attack the standing impermis- lacked Constitution; hence the Maryland United sible under the States statutes as be- challenge them to state permit courts should not in the state courts. Federal Constitution ing violative case, answer, supra, supplies quick Again, Murray Court, for the said: wherein Judge Oppenheimer, is attacked in of a state statute validity “When court, court to determine duty a state it involved, as well federal issues all the constitutional the state is held valid under as state. If the statute Constitution, the law, federal under the but invalid relief they complainants must give state court ** the law of standing under *. If have pray. suit, the re- is irrelevant that Maryland bring in- had the action been different have been might sult Md. p. court.” 241 392. in a federal stituted in that the ruling correct the Chancellor was We hold that standing. had individual appellants TO BE APPLIED. TEST THE in this nothing opinion outset noted It should be sect, to, of, religion, a boost as a criticism or is intended is to decide a constitu- schism, Our task religion. or lack that, and that alone. just to do We proceed tional issue. unnecessary to include it will be purposes, our present For of the First Amendment1 background historical an extended measure, to course, in pertinent, large is likewise (which, aspect pursuing this of the case further in interested 1. Those instructive, comprehensive treat- interesting, rather find will opinion subject in v. in Black’s Everson ments Justice opinion Education, Frankfurter’s 330 U. S. Board Justice Education, 203, in 333 U. S. Board McCollum v. Justice supra, Schempp, Abington Dist. opinion v. School Clark’s Justice Cooley’s supra, Constitu- Everson, and in 2 Rutledge’s dissent Limitations, pp. 960-985. tional
655 However, Article XXXVI of our Declaration Rights). seems to set forth a outline of some appropriate sketchy facts our which the Framers of Federal Constitution and the in First Amendment thereto had mind when the Amendment A.D., 112 added. In about wrote the Roman Pliny Em-
рeror Trajan dealing jus- whether he was out exact inquire tice to Christians who had done in violation of the law. nothing He stated if that he asked thrice the person charged (man, woman, or in child) person were If the answered Christian. times, or she an- affirmative he was executed. Trajan swered, Pliny—you have taken the method which “My you * * ought of the Christians the hea- persecution lions, etc., thens (by continued them to the as throwing every school child is until about taught) Emperor A.D. when belief; Constantine embraced their and later the 4th century Christianity became the religion official Rome.
After became Christianity the established Church of Rome and the Church increased in wealth and there gradually power, constantly developed disputes provinces various between the Roman as bishops the civil authorities to their respec- time, tive In Church so authority. became rich and influen- tial that certain of the felt free assert their Popes authority as This, being to that of the superior Sovereigns. nat- reigning urally, developed angry deep-rooted conflicts and contro- versies nations, between the some of and also- Papacy nations, themselves, between depending upon whether not agreed with Papacy. The religious Crusades 1270) 1096 to are also sub- (about jects which still school taught nearly every child. They engaged, off and on for some 200 all of years, practically continental nations and European England costly and cruel warfare in attempts to and to hold the capture Holy In Land. conflicts, these not only reigning monarchs and nobility par- but also ticipated actual combat Church bishops and clerics. Crusades, A concerning fact so generally known above, 30,000 is that two them were armies of about Josephus (dissertation), pp.
2. Works of Flavius The Genuine 63-65.
20,000, of respectively, composed girls, many small boys whom, of died.3 quite naturally, time,
We a short of in which the unbridled pass period over grew fervor and fanaticism of the Church to the expanded, of Modern Fre- origin 1481). the Spanish Inquisition (about this secular and caused' most authority fervor vied with quently á incidents such the murder of Thomas important Saint Becket, the Roman Catholic while Archbishop Canterbury, royal in 1170 A.D.4 Because of his to vespers, opposition II to in the Henry have said authority, reputed presence his I me man of knights: enough spirit “Have not about one rid me of a Four immedi- single prelate?” knights to insolent “commission,” and carried out the ately accepted king’s shortly desire. Another event occurred expressed important a dele- 1208). thereafter Innocent III commanded (about Pope of the monks at to select gation Canterbury Stephen Langdon a had com- King whom archbishop place person John to them to elect. The refused to pelled King permit Langdon measures, “de- land in After other England. trying Pope seize the King and ordered of France to posed” Philip John In accept Lang- Crown. the end was forced to English John don, $64,000 and in to a tax of some pay addition promise current his crown. (in money) year permission keep need dwell on the horrors and long perfidies We motivat- intensity feelings but to understand Inquisition, era, of this it is to know the teach- necessary ing persecutions at that time and what the law of the civil of the Church ings authorized. We a few from authori- quote excerpts authorities ties relative thereto:
“Acts of intolerance are to be discerned from the became es- earliest period Christianity of the Roman But do religion Empire. tablished from any systematized not seem to have flowed plan Ency., p. 938. Book 3. World Ency. p. pilgrimage 150. A from 4. 3 The World Book London is, buried, course, Canterbury, the Saint was where “Canterbury Tales.” theme of Chaucer’s famous until the had swollen to persecution, papal authority height.” considerable “In the liberal present knowledge state [about we look with 1837], disgust at pretensions exalted, human being, however invade the sacred conscience, rights of inalienably possessed by every 5man.” “But, to the action judge we must fairly, transport age ourselves when it happened. The difficulty is, that meets inus the outset to find a justification right of conquest, at all. But it should re- membered, infidelity, at this period, *11 later, till a much regarded—no was matter whether education, founded on ignorance whether heredi- or acquired, heretical or a tary Pagan—as sin to be punishеd world, with fire and faggot in this and eter- nal doctrine, in the next. This suffering monstrous as is, Romish, words, was the creed of the in other of Church,-—the the Christian basis of the Inquisition, and of those other species persecutions, annals, which other, have stained the at some time or nation in nearly every Christendom. Under this code, heathen, found, of the territory wherever was as a regarded waif, which, sort of religious default a legal was claimed proprietor, and taken See, possession by the Holy and as such freely Church, given the head of away by to any temporal potentate whom he pleased, that would assume the bur- Thus, den of conquest. Alexander the generously Sixth granted a large portion the Western hemisphere to the and of Spaniards, to the Portuguese. Eastern These lofty pretentions of the successors of the humble Galilee, nominal, fisherman of far from being were acknowledged and appealed to as conclusive in con- 6 troversies between nations.” Isabella, pp. 5. I Prescott’s Ferdinand and 231. Conquest pp. History Mexico, Lea, 6. II Prescott’s 31. A Inquisition Ages.
of the in the Middle 658
We move on to a later date (around 1500) see the con- flicts and controversies between Church and continuing.
“We shall conclude this Chapter by melancholy mind; truth which on obtrudes itself the reluctant * * * that even all that has recorded admitting history * * * on the it must subject martyrdoms, still that the Christians in the course of their acknowledged dissentions, intestine inflicted far greater have severi- on ties each other than had from the experienced * * zeal of the infidels. In the *. Netherlands alone 100,000 more than of Charles subjects V 7 said to have suffered the hand of the executioner.” controversies between VIII and the protracted Henry executions, were, are, with attendant well known. Papacy, resulted in a series of enactments of Parliament which sev- They financial, ered ties great legal, and administrative Christendom, joined had state with English Western The Act of Holy Church with the English Supremacy See. in- declared head the Church of and the England Henry After the heritor of Rome. jurisdiction Bishop “judicial reached England of several murders” knowledge Rome, Henry, issued a bull which excommunicated Popе Satan, in- and his to the first kingdom delivered his soul to and, after replied sequestering pillaging, vader. The King as 645 number of houses destroying large (reputed monasteries, and 110 chari- collegiate churches chapels, *12 table institutions). as- Mary death of his Henry, daughter after the years
Six Catholic, and did a devout Roman cended the throne. was She in England. to re-establish that Church she could everything and to Pope, accomplish resumed relations with old She to the religion, her she resorted objectives her in supporting Empire, Gibbon, Roman Fall of the The Decline and II7. 197, ed.) pp. (Smeaton 198. 197, pp. English History, Montgomery, Leading Facts of The 8. 198. and, when fagot, rack and the dungeon, of the
arguments execution, work of persecution slackened their her bishops read- The penalty their hands.9 stay she them not to urged was Protestant prayers or offering ing English Scriptures 209, that says in footnote at op. p. cit. Montgomery, death.10 held strong all then the same as who state of mind was Mary’s to convert duty it a convictions, and “each believed party heretic other, and the alternative offered exterminate the ” was to ‘turn or burn.’ on the her sister Mary I succeeded (1558-1603) Elizabeth the first throne, when approaching period and we are now con- on this established colonies were to be English permanent many repeal tinent. Her ascension was followed a new enactment reign, enacted in Mary’s laws an of a revised version Act of Supremacy, adoption Church, under formulated Ed- English beliefs of the enact- these and other Commenting on ward VI (1547-1553). reason for “The ments, states: op. p. cit. Montgomery, were in that Church age measures was stringent these Europe country to be No inseparable. considered everywhere conceive the then in Protestant Germany—could (cid:127)—not even re- other. Whoever of each existing independently idea of their whatever form of worship, fused to the established support he, government.” against looked a ‘rebel’ might upon added.) (Emphasis Puritans, not believe did Protestants who number of
The far went England Church the tenets the Established influences, from Roman that Church enough “purifying” reign. bounds in the last half of Elizabeth’s grew by leaps a grеat (1603), they presented crowned Before I was James certain rights privileges. him requesting Petition to all con- make he would denied and avowed were requests James In de- country. or leave the Church form to the Established Puritans, determination, a of these firm band but spair America, emi- go license to royal to obtain able being op. Montgomery, cit., p. 209. 9. interesting Framers, gives Franklin, Benjamin one of the 10. autobiography his ancestors circum- how one in his account proscription. this vented *13 660
grated (about 1608) Holland where they remained for 12 years. granted America, them Finally permission to togo James so in 1620 2 after (just years beginning the devastating religious war in War, called the Europe Years’ Thirty and 29 years I) before the Puritans beheaded Charles our Pil- King grim Fathers set sail for this country, being the first English- men to flee from persecution, seeking asylum this country where could dictates worship according of their consciences. narrate,
We shall briefly, two other events that occurred in Europe, to, do so because of their importance influence over, the colonies of this as country men- they developed. We tioned above the Thirty Years’ War (1618-1648); began a civil war between the Protestants and the Roman Catholics States, in the German but before it was over all of the nearly nations of became Europe involved. gives One authority following account of results thereof: in a
“Germany was pitiable condition the time the war people ended. More than had finally half been killed. Those who survived saw but ruin nothing cities, wherever they looked. Whole villages, and farms had md two thirds all disappeared, the property Art, had science, trade, been destroyed. and industry languished. It took about two hundred years Ger- many recover from the effects Thou- [this war]. persons sands Europe, especially Germany, left went to America to build new (Emphasis life.” added.) we mention the fate Finally, Huguenots France. Protestants, They were French who grew into sizable propor- tions in the 1500’s and 1600’s. A civil war broke out between them and the Roman Catholics. Without into the sad going conflict, details of that unfortunate the Huguenots, after much deaths, bloodshed and many given wеre freedom of worship about 75 towns cities of Nantes but Edict (1598), 300; Ency., p. 11. 17 The World Book see also 3 World’s Best Histories, Germany, XVIII; Encyclopedia Brittanica, pp. Part seq. 136 et *14 the repealed in when XIV the again lost same Louis find: Again we Edict. homes fled France to new Huguenots
“Thousands Holland, America. Many and Germany, in England, Carolina, Virginia, in prospered settled and South Massachusetts, and New York [emphasis Among ours]. Legare, Petigru, Maury, such were Huguenots
Revere, and families.” Jay, DeLancey shall not discuss in that arose We detail complexities in each of the concerning Church and Colonies. It seems Fathers, obvious that had here Pilgrim our revered who come freedom, to seek were not in a mood religious complete to grant all religious thought freedom of to others. We all know banishment It Roger Williams. also is apparent Mary- land’s Act of 1649 vaunted Toleration toler- granted Christians, only ance and it is entirely that it was possible at least in prompted, part, expediency. The Puritans had government taken over in the Mother in the Country early part of that in year, Proprietor, order to strengthen Lord his the Home position with Government had issued invitations to settle here to the New England Puritans and those Vir- in ginia, where Governor Berkeley, the Puritan suc- spite remained a England, Royalist cesses and an adherent of the Andrews, Anglican Church. The Pounding Maryland, Ch. XII. We close our remarks concerning the colonies with the at least 8 of observation that them had Churches Established Revolution; and Virginia, before after a struggle lasting about 7 had defeated a Bill years which would have permitted religions taxation to support had enacted Bill Jefferson’s Freedom, for Establishing Religious in 1786. (For instruc- 8 12. World Book Ency., p. 375. For rather detailed account of the trials of Huguenots, tribulations and the extreme provisions revoking of the Resolution the Edict of Nantes'—demoli of all interdiction chapels, tion assembly worship, all kingdom ministers days, closed, leave the within 15 all schools baptized by parish priests, Huguenots new-born babies kingdom pain galleys forbidden to on leave the men, for the and confiscation for person property women, etc.-—see Historiеs, France, IV The World’s Best Ch. XLVII.
tive and more treatment in the comprehensive of the situation Colonies, Vitale, see Black’s v. opinion Engel Justice 421.) U. S.
Thus it is seen difficult-to-sup- Framers knew man’s press still (and unextinct) failing desire to persuade, persuasion, others and believe his compel adopt views, and man’s the re- unswerving determination to select views most him ligious appealing to and his individually quest to believe those views and to fear or favor had worship without been divisive forces since deeds of mankind potently ever had been recorded. had been of the latter great the impact So neither dungeons, determinants that bleak winters mortally *15 colonies, executions, the far-distant wholesale at plain burnings stake, nor the “exquisite” agonies produced by and prolonged the tortures of machinations most by ingenious the developed had dis- “persecution minds of the ages (i.e. perfection”) man in his suaded of freedom and pursuit equality. subject though the above is but outline sketchy
Even stated we set the same forth (as above), involved we have some demonstrate that the to be considered length problem to First and solved when the Amendment was proposed one of blunt hazy insignificance, one of but was comparative had and the nations reality, perplexed plagued and stark which centuries, for and that during Civilization some 14 Western government the union Church long period, earth, neither on nor will produced good man had peace man. unfor many recurrences of prevent
In an attempt those mentioned in (and opin mentioned above tunate evils our forebears decided best 1) in footnote it was named ions Government, for for that Religion best best mankind In this order effectuate separate apart. be kept the two Amendment was that adopted provides First goal, no respecting shall make law establishment “Congress * * A free exercise thereof prohibiting religion, date, requires authority as- no citation of this At late 13. applies proscription through the to the states the same that sert Amendment. Fourteenth narrow and literal cast reading might the same some doubt as to whether our factual situation present presents any ques tion relative to an “establishment” of but we shall religion, point out below that the Court has not Supreme construed the Amendment in such a narrow fashion as to exclude the issues See, here raised from its purview. McCullom v. example, Educations, Board supra, 333 at p. U. 213. S. considering decisions,
Before Court we shall Supreme of two dispose arguments subordinate advanced by appel Practice, lees. Under the heading of Legislative they set forth large and imposing grants Congress made to various by insti tutions and programs sponsored governmental agencies departments. are, The actions of Legislative Branch course, entitled to consideration and v. respect, Murray, Etc. Comptroller, supra, 400; atMd. but are not p. con trolling the determination of a direct and constitu specific tional on an McCollum, attack individual Schempp, statute. Watkins, and Engel, supra, all and Torcaso v. 367 U. S.
wherein the Court Supreme uprooted long-standing estab lished practices sanctioned legislative and state constitutional provisions. also if argue invalidated,
They grants herein be no state grant sustained, educational institution could be unless every vestige of officially sponsored religious observances from entirely divorced the institution. The appellants label this “appellees all-or-nothing argument.” argument loses *16 think, sight, we of the fact that there is a constitutional differ- ence a sectarian one, between institution and a secular may officially one or sponsor more religious observances. We shall out point the test to be applied below. a brings
This us to consideration of the Supreme Court de- on cisions bearing questions herein involved. The parties on both sides have controversy carefully analysed the same in their briefs. Clark did likewise in his opinion Justice Schempp, supra, However, decisions it. preceding we do or necessary not deem it desirable to take up each of these detail, analyse decisions and them for this Court has very Etc., their recently stated rationale supra Murray, (241 Md. 401, involving 398 and church pp. exemptions from taxa- dis- where for the Court without tion), Judge Oppenheimer, sent, said: however, our we find
“In reading opinions, the frame within which guide broad lines which form the case before us is to be considered. We insti- recognize religious the effect religious people Amend- human The First activity. tutions have on be- to erect ‘a wall of designed separation ment was un- Mutual independence, tween church State.’ Constitution, for the der our is deemed best State can cannot nor religion. best for forbid aid in perform performing religious function. concepts, meaning constitutional other broad Like application in the ‘separation’ to be ascertained is A state cannot principle pass cases. specific ac- all but state religions, a law to aid one religion general society, apart tion to welfare of promote valid, consideration, though is even religious from any If benefited. may indirectly interests re- of the state action is to promote primary purpose Amendment, action is in violation of the ligion, that and religious but statute both secular furthers if ends, necessary the means used is an examination of have reasonably whether the state could to determine end means which do not attained the secular fur- added.) promotion religion.” (Emphasis ther the clear, though makes even the exemp- “As McGowan if religious origin, unmistakably tion had exemption primar- and effect present purpose secular, and those secular could not rea- ily purposes if achievable without an incidental be deemed sonably organizations, the ‘establishment’ benefit not violated.” clause is many supported emphasized by so rationale The above 14. Supreme decisions that at a loss one is in the Court’s statements naming end in start and where to them. We know where reflected of the First Amendment few. “These words forth a set *17 early picture mental of condi- Americans a vivid minds in the There are two in celebrated passages opinions the of the Su- * * practices they fervently stamp tions and which to wished out practices “These collection taxes and to [the sustain tithes government-sponsored commonplace churches] beсame so to as freedom-loving feeling shock the colonials into a of abhorrence. * * people Virginia], elsewhere, *. The there as reached [in religious liberty conviction that individual could be best achieved government stripped tax, power under which was of all to to ** support, any religions or to all otherwise assist or After quoting “Virginia Religious Liberty,” from the celebrated Bill for Hening, Virginia by (1833) 84, originally Statutes drafted Jefferson, free; stating “Almighty that hath God created the mind ** * * * * attempts temporal all by that to influence burthens * * beget only hypocrisy *,” tend to habits of and meanness and compel money “that man to furnish contributions propagation opinions disbelieves, he is sinful * * “* * * tyrannical Supreme recognized Court that * * * provisions objective of the First Amendment had the same provide protection govern- against were intended to the same ** religious Virginia liberty mental intrusion on *. statute.” Jersey consistently religion’ “New cannot with the ‘establishment of * * * support clause contribute tax-raised funds to the in- any stitution which teaches the tenets and faith church.” All majority opinion supra. Everson, from the Jefferson, frag- any “With Madison believed tolerate perpetuate ment of establishment so would much to re- upon [general sought straint freedom Hence he freedom]. branch, partially tear out the institution root and but bar its return forever.” phase “In unrelentingly no he was more [Madison] absolute opposing support than in or state aid taxation. Not even ‘three pence’ any thus to contribution was be exacted from citizen for purpose.” against Religious such a Memorial and Remonstrance Appendix, Assessment. Memorial set forth in [The 330 U. S. * * pp. seq.] objection et “Their *. was not to small It tithes. ** any was *. Not tithes whatsoever. amount but ” ** ‘principle wrong.’ of assessment “In *. of this his- view tory proof any no further needed that Amendment forbids appropriation, large small, public support from funds to aid excerpts all A exercises.” from Rut- few Justice Jackson, ledge, Frankfurter, with whom and Burton con- Justices dissenting. Everson, supra, curred McCollum, supra, Jewish, In interested members of the Roman Catholic, voluntary some faiths formed a Protestant They permission аssociation. from a Board obtained of Education public to offer classes instruction schools. “The *18 the in relating religion preme provisions concerning Court * ** tax-supported property foregoing facts show the use of * * operation religious instruction *. The of State’s com- the system pulsory integrated thus the education consists and is with * * beyond question program religious *. This all of instruction is tax-supported public school a of the tax-established utilization spread system religious groups it faith. falls to aid their And * * squarely “The First Amendment State under the ban of the helps to groups in sectarian an invaluable that also affords aid provide religious through pupils of the for their classes use State’s separation public machinery. compulsory of This is not school supra. opinion McCollum, in the Courts Church From State.” Jackson, Rutledge Frankfurter, whom with Justices Justice McCollum, supra, agreed concurring opinion said: in in Burton his commingling of sectarian with “Illinois has here the authorized public of the secular instruction in the schools. The Constitution forbids United this.” States separation, something “Separation means less. Jefferson’s
metaphor describing the and State in relation between Church separation,’ easily speaks not of a fine line over- of a of ‘wall stepped.” Engel, supra, In it was stated: hardship anguish, “They that could and bitter strife knew the religious groups struggled one another come zealous when Queen, King, approval stamp of from each obtain the Government’s temporary power.” or that came to Protector government support power, prestige and financial “When the belief, religious placed particular the indirect coercive is behind a pressure upon religious prevailing conform to minorities approved religion plain.” officially cogent Schempp, Among many find other statements we following: * ** proposition the effect of no to the “There is answer to take to our was freedom Amendment Constitution things every propagation religion out of realm form of public directly indirectly be made business could expense part taxpayers’ thereby supported or in at whole » sjе * % complete permanent separation “It to create by comprehensively authority religious activity spheres and civil support religion.” every public forbidding aid form ‘neutrality’ speak of which this Court’s cases “The wholesome the First Everson; Amendment: first is in other Black, Schempp. Court, Everson, for the said: Justice recognition teachings history stems from thus powerful groups might bring govern- sects or about a fusion dependency mental and functions or a concert or of one upon support to the other end that official or Fed- placed eral Government would be behind tenets one or of all orthodoxies.”
[*] [*] [*] “Applying principles Clause to the cases Establishment *19 requiring reading bar we find that the are the selection States opening day Holy the of the school of verses from the Bible Prayer by and the recitation of the in Lord’s the students unison. prescribed part These exercises are the curricular activities required They by students are who law to attend school. buildings supervision in held the school under with participation employed of teachers in those schools. of these None factors, compulsory attendance, present other than school in program upheld in Zorach Clauson. The trial in v. court No. opening religious 142 has found that an such is a exercise cere- mony by agree and was intended to be so. We finding trial court’s as to the character the exercises. finding, requiring Given that the exercises them are the law in violation of the Clause.” Establishment require “The conclusion follows that in cases the re- both laws ligious being exercises exercises are in such conducted direct rights appellees petitioners.” violation “Further, urge religious practices is it no defense to may relatively here be minor encroachments on the First Amend- trickling neutrality today ment. The breach is a stream may raging and, all too soon become a torrent in the words of Madison, proper experiment ‘it is take to alarm at the first on our ” liberties.’ Douglas opinion: concurring stated in his Justice way any “The most to establish institution to is effective finance it; by appeals groups and this truth is in the church reflected public Financing their schools. a church funds financе strictly religious either in its activities or in its other activities is equally unconstitutional, as I understand the Establishment Clause. Budgets activity may technically separable budgets for one be from inseparable whole, living for others. But the institution is a organism, strengthened proselytizing it when strengthened any department contributions from other than (Emphasis original.) its own members.” in the Probably language much of this would have been included in First religion’
“The 'establishment of clause of the least this: a nor Amendment means at Neither state can a set church. Neither up Federal Government one aid all religion, religions, can laws which aid pass or another. can force religion one over Neither prefer remain from nor influence a to or to person go away him be- his will or force against profess church can religion. person lief or disbelief No be any pun- or or beliefs professing religious ished for entertaining disbeliefs, or for church attendance non-attendance. amount, small, can levied large No or be any tax institutions, or activities what- any religious support called, or form they may ever whatever may nor Neither state practice religion. to teach or adopt can, the Federal Government openly secretly, par- in the affairs of religious organizations ticipate In Jefferson, and vice versa. the words of groups religion law was against clause establishment 'a between church separation erect wall intended States, supra v. United at 164.” Reynolds and State.’ in Schempp. In opinion part, Clark wrote Justice stated: be stated as follows: what are the may
“The test *20 If effect of the enactment? primary and the purpose or religion inhibition of then either is advancement scope legislative exceeds power the enactment That is say the Constitution. as circumscribed strictures of the withstand the that to Establishment legislative be a secular and purpose there must Clause that neither advances nor inhibits re- a effect primary Education, supra." Board v. ligion. Everson McCollum, supra, repeated quotation The first repeated likewise McGowan v. Mary thereof were portions Watkins, Torcaso v. land, 367 U. 488. 366 U. S. S. Clausоn, 306, the 343 U. Court the con- upheld Zorach v. S. In opinion, grant, expenditure, majority had direct or direct a money involved. been of a stitutionality religious “released time” instruction pro- gram no (there funds or use of being expenditures public however, public fi- buildings), “government stating, may nance nor nor religious groups undertake instruction ** Engel, blend secular and sectarian education And in supra, as stated in said “the power, footnote the Court when prestige government and financial behind placed is support belief,” a particular is Clause vio- Establishment lated. Schempp
The Chancellor setting read the as forth opinion a new and comprehensive test to what was consti apprehend tutionally permissible impermissible under the Establish ment Clause. We do opinion not read the that manner. We do not read as test, nor establishing completely new one that can be in all applied cases as a final and determinative one. Schempp did not involve direct nor a expenditure direct grant money.15 We read test therein mentioned as being and, involved, sufficient to decide the issues there as the factual situation showed the statutes could not even the test pass named, no more or was needed to be said added thereto. In words, other the statutes there involved clearly showed that their “purpose primary effect” was the advancement of re ligious exercises. If either their “purpose” effect” “primary advancement, were unconstitutional, and, such the statutes were as issue; offended in both that determined aspects, so why add hypothetical tests all cover attempting conceptual situations, factual as such where secular and sectarian exer cises are fused commingled, etc. ?
It is inconceivable to us Schempp' was intended sub silentio to overrule or supersede the other Everson Estab- lishment preceding Schempp. cases On the contrary, Everson n citedin the some half opinion, approval, dozen (In times. fact, Everson, cited authority naming the test.) At point, Everson; one after quoting, with from approval, from dissent therein to the effect that the First Justice Jaсkson’s Amendment “was to take form of every propagation religion Douglas only 15. was the member of the Court who felt Justice *21 though public expenditure minuscule, that even the was it was n sufficient to invalidate the statutes involved. 670
out of of things the realm which could or he directly indirectly made in public business be in thereby supported whole or * * at part expense Rutledge’s from taxpayer’s Justice declared, dissent therein which “but broader object was sense, than church and state this narrow separating [i]t complete spheres create permanent separation religious activity for- authority by comprehensively civil bidding every religion”; form of aid or public support on has. conclusion say Schempp) Court went “the same (in McCollum, firmly been maintained ever since time [citing Torcaso, added.) McGowan and all supra].” (Emphasis After a of all of the Court decisions consideration Supreme rationale, above, our their we have statement of quoted that, First reached the conclusion insofar as the issue of the concerned, following stan- Amendment is we should apply statutes consideration. measuring dards in under in As is claimed that First Amendment liberties have been con carefully we must scrutinize and fringed upon, closely McGowan, supra, at p. sider the issues 366 U. presented. S. Murray, on facts. case must be determined its particular 449. Each c., each supra, Md. must examine at 398. We p. Et its demonstrated that decide whether it can be the statutes and face, conjunction on evidenced either its purpose—as to use or in its effect—is legislative operative its history, supra, religion. Schempp, to aid power coercive State’s McGowan, opinion Frankfurter’s U. S. Justice contra- “If primary purpose U. at 467. pp. S. [as tois of the state action from an incidental distinguished one] Amendment, action is in violation of religion, promote furthers both secular if a statute effect operative but of] [the is neces ends, means used an examination and religious at have reasonably could determine whether state sary the pro means do' not further end tained the secular McGowan, supra. Etc., supra. Cf. Murray, of religion.” motion small, amount, sup can tax, be levied large or any No institutions, they may whatever activities port any or prac form to teach may adopt called whatever Everson, S., Although 16. supra, 330 U. p. religions. tice an to the support “contribute tax-raised state cannot funds church,” faith of tenets and which teaches the institution *22 671 individuals, it cannot lack exclude of their faith or because it, from receiving legisla- the benefits of welfare public valid Everson, tion. supra, case stated the fac- (a wherein the Court tual situation “verged” upon the When the impermissible). power, and financial prestige placed support government belief, behind a particular religious pres- indirect coercive sure upon minorities to conform of- prevailing to the S-, ficially approved religion Engel, supraa, 370 plain. p. U. 431. We are unable to that accept every contention appellees’ same, religious observance sectarianizes by institution feel but question depends upon sectarianization themselves, observances, mode, consideration of the and the zeal, prin- with which frequency are made. These sufficient, think, ciples issues, we to determine our present and we shall in in- apply them four statutes considering the volved.
We have little with such cases as comparatively difficulty Roberts, 291, Quick v. U. Leupp. Bear v. S. Bradfield Louisiana, etc., U. and Cochran S. v. 281 U. all S. cited analysis We shall make short appellees. but a Brennan, the same. Schempp, in his in concurrence Justice supra, said: “A of several earlier cases scrutiny [including * * * three cases named shows that cases neither such above] nor raised decided any constitutional under the First- issues Amendment.” We agree.
And we find no great in McGowan difficulty distinguishing Maryland, supra, v. wherein the validity Maryland Sun- There, day-closing laws were upheld. general welfare “public legislation” was upheld because its then “present purpose provide citizens,” effect” was “to uniform for all rest day though religion even in might have been affected benefited a purely incidental It much holding, manner. the same Everson, as principle, supra, wherein the Court observed lеgislation “verged” As upon being impermissible. we have above, stated is a all question degree how far re- ligions a specific religion may be benefited action State without the out of role stepping complete its “neutral- ity,” losing and such action its character as being incidental to general legislation. lawful welfare TO INDI- STANDARDS THE
APPLYING THE VIDUAL COLLEGES cases; There is over the facts controversy little is as effect of facts. legal rather the dispute fol- accord that the on both sides are experts general an edu- significant determining factors are whether lowing or sectarian: the stated (1) pur- cational institution is includes college personnel, poses college; (2) *23 board, officers, the faculty, the administrative governing the laid on being and considerable stress body the student (with board governing the control over the substantiality religious a the col- sectarian); as criterion a is college (3) of whether organizations and religious groups, with lege’s relationship the extent financial ownership, which includes relationship assistance, affiliations, religious and college’s memberships the relation- college’s and miscellaneous the purposes, aspects church; its of religion with the ship (4) place sponsoring religious the includes the extent of college’s program, and the character surroundings, manifestation in the physical the religious encouraged by extent of observance sponsored students, for or all the college, the participation required sponsors encourages religious to which the college extent from that of own church college’s of sects different the activity and in the curriculum and extra-curric- religion the place of college ular or “outcome” of the programs; pro- the result (5) such as accreditation and the nature and character gram, alumni; of the image activities of the work and (6) college the community. these criteria and the standards we named
With above mind, schools, In we consider the forth individually. setting each, followed, in the facts relevant to we have considerable schools, measure, brief with to some of the appellants’ referеnce same checking after evidence. carefully HOOD COLLEGE 88 of the Acts of the General Chapter Assembly 1962 $500,000 grants College help dormitory to Hood erect building. a classroom Bulletin issued in Hood
According College women,” “an liberal “is college arts independent
673 affiliation with the United Church through related its church all faiths.” welcomes students of but Christ [U.C.C.], of In- Foundation in a Tabulation the Danforth It is listed re- “reflecting Bodies Religious Associated with stitutions limited to an enroll- It is a small college, orientation.” ligious students, a Board of governed by ment about 650 and is are elected 35 of these consisting of members. Trustees Seven itself; U.C.C.; and 6 by 22 Board by of the by agencies The President its membership. Alumnae Association from Board, President, after screening by and the selected officials, the administrative college person- selects appropriate chairman of the members are located usually nel. Faculty are selected They upon where a occurs. vacancy department credentials, and earned of their academic analysis qualifications, There no congeniality.” and their “character degrees, Presi- of the faculty; members requirements sectarian Hood had all shades of “virtually dent thought affiliation.” non-religious affiliations represented [thereon] 1963-1964, 2 of the In there were 7 Episcopalians, the year Jew- Lutherans, Methodists, faith, affiliation indi- 6 1 with no ish cated, but non-denomi- 2 listed as Protestant Presbyterians, Catholics, national, Society 5 Roman 3 members U.C.C., Unitarians, rather Friends, and 10 members *24 for a faculty sectarian school. heterogeneous officers of member of the requirement any There is no denomination, and, be of any particular religious administration fact, any par- not represent in the administration do officers these are religious among or Included body. ticular church Lutherans, Methodists, one Roman Presbyterians, Baptists, Unitarian, one and 7 members of the U.C.C. Catholic who Chaplain, supervises, no that the requirement There is any student be of religious body par- the lives the generally, denomination, is a member of although the one present ticular the U.C.C. selected to educa- according body primarily
The studеnt the students and the schools from records supplied by tional come; based on requirement there no they absolutely whence creed, color, in race, or sectarian affiliation the student body. for year their affiliation religious An 1963- examination 674 unduly
64 such a that it would prolong shows diversification this to include them all. student some opinion Among body students, were 146 stu- Episcopalians, included 29 Jewish dents, Methodists, Catholics, 72 Roman 108 Presbyterians, and 89 members of the U.C.C.
The confers two earned the A.B. de- college only degrees; is, course, gree, which a liberal arts and the de- degree; B.S. in It has a gree religion Home department Economics. are in the courses therein conducted philosophy; taught in other These courses same manner as the courses departments. other; are not Protestant geared aiding religions any or in are historical studies and “there is ab- primarily religion in Presi- solutely way.” no at indoctrination The attempt any dent that he had stating believed emphatic proselytizing no place higher professors education.
field members or to are not confined to U.C.C. Protes- addition, U.C.C., tants. In there is no or attempt other to select texts or to offer to which suggestions as group, used, there no or religion texts should be courses curriculum, else in the are de- anywhere philosophy, ministry to train for the work. The re- signed if they attendance quirements chapel (indeed, may termed from the do not call for requirements evidence) fre- services, student with the allowed “cuts” quent being generous services, Wednesday evening without excuse. On the of which semester, there are per clergymen various approximately and talk denominations come in students. These include Catholics, Protestants, Rabbis, Roman and a Humanist Jewish Hood, him, after listening President of (the being unable was). This religious preference general state what his same pat- services, Sunday evening tern is followed but extent on Wednesday same services The.stu- evenings. to maintain ties with encouraged dents are the churches of their college, while at the and each Sunday own denomination morn- for the purpose going are released to such ing they churсhes locality. in the *25 above, mentioned the U.C.C. In the contributed year 2.2% budget; total but college’s operating contributed nothing with the capital gifts, way exception
in the one in the gift $10,000 for endowed scholarships. amount The college has a loose “very relationship” the Council U.C.C., for Higher all of the Education church-related colleges related to the U.C.C. automatically becoming members of the Council.
During the summers the college permits various civic and re- ligious to utilize their groups campus for which programs modest are charges made. The school has no control over the and, discloses, programs, far as the record programs not confined to church affairs or to any particular denomina- tions.
The facilities to be housed by grant herein involved will be a new academic building and a no ac- dormitory; tivities will be conducted therein. summarization, think,
The above Hood, we discloses that al- school, though it is a church-related constitutionally may receive the money mentioned in the No challenge Bill. under this head- ing is made the Bill’s against other permissibility than its al- leged violation of the Clause of the First Amend- Establishment ment. above, the criteria we
Applying named we are unable to say that the is sectarian College legal in a sense under the First Amendment, or to a degree that renders the grant invalid there- under. The stated in College’s relation to purposes religion are fervent, intense, nature, not of a or passionate but seem to be based largely its historical upon background. The College was in established when a great number of schools private church-oriented, were and it was then related to the Reformed Church of the United After two church mergers, States. one 1933 and one about the present sponsoring church is created U.C.C. The Church newly does not have control over the governing body certainly college personnel shows no serious attempt or to proselytize, require certain religious beliefs to become a member thereof. The financial as- sistance budget given operating by the Church 22°/o is a moderate percentage. only physical structure of a re- ligious character seems be the and it Chapel, open all. curriculum and in Religion extra-curricular programs at a church-related minimum school. We do not find a dominant religion occupies place the College’s pro-
gram, showing the record that students are clearly required is, and It many religious to attend observances. participate course, any great of The record does not disclose accredited. nature, and, although alumnae a religious the of activity among sound, good, Hood in the that of a image community the of is and there is no that it is considered College, showing efficient circumstances, it is the above to be slanted. Under religiously run- nor other is religion that neither the U.C.C. obvious institution, control it. or has over ning therefore, hold, grant that the primary purpose We is aid or that there support religion; here involved was not to to demon- legislative Bill or nothing history on the face its use coercive power strate that its was to purpose State’s aid re- its effect is not to religion; operative to aid and that here; record, aid religion read we see no ligion we (as remote very if is incidental there be any assuredly for women. the educational facilities but to nature), promote Amendment. Bill does not violate the First Consequently, MARYLAND WESTERN of 1963 Assembly Acts of the General 546 of the Chapter for the $500,000 Maryland College purpose to Western grants hall. dining of a science wing in the construction aiding to a consid- religious objectives include The stated purposes “religiously itself as a The characterizes college erable extent. the fact that no bones about oriented institution” “makefs] is a Christian Maryland philoso- Western our philosophy phy.” the governing of the members of than one-third
One more Ministers, to Methodist so its Charter board are required any change over inimical power the veto clergy give “binds required percentage of the church. interests to the The board is heavily to the Church.” college very closely Protestant, Methodist, although a number of quite all nearly n denominations All have thereon. the presidents are represented entirely administration is almost Ministеrs. The Methodist keen Protestant, a number denominations quite although, again, represented. committed to the Christian faculty to obtain is taken Care AI- would not be life, employed. and an atheist philosophy Methodist, most half all faculty almost Protestant. Methodist, student and al- Approximately body 40% most all large Protestant. The number of Methodists is due to greater likelihood acceptance Methodist “borderline cases * * * constituency because seem col- part lege,” and to the large number of Methodist who be- students college come familiar with the during church conferences on the *27 The a campus. significant has number Methodist college pre- ministerial given students. of these are scholarships rang- Some from to full ing tuition. And the children of Methodist Min- isters half charged tuition. only value,”
The church “financial of considerable provides support both and operational capital, the operational being contribution with, between and of the budget. The is affiliated college 3% and denominational supports, educational associations. college The is very heavily used Protestant re- campus by ligious at actual groups cost), and and nat- (some “logically there been of more of urally, have course the Methodist pro- gram than any here of the other denominations.”
The a college religious fosters under the direction program, of a Methodist Minister. in Protestant Participation religious services is all required of students. The is requirement pub- licized so that if has anyone conscientious at- scruples about “he tending such services should know he that before comes.” a college The makes conscious effort to integrate religion* and Christianity, with the specifically curriculum and extra- curricular life. Because Methodism does not have wide range one, more, have, of dogma that religions is there less spe- curriculum, cific restriction in regard to but the school endeavors to a provide motivation. from briefly
We material quote contained in documents is- sued College: “Many become seriously [of students] in interested for the religion first time attending the col- [while .” lege]
Under “What Has the heading Done For College The Church,” above, after what we named listing have we find the following:
“The contribution principal College making is in Church accordance with its College’s] [the
basic provide higher the best educa- purpose: atmosphere tion and the veri- within framework our ties and values Christian (Emphasis faith” added.) The Association college is accredited the Middle States Method- and the of the Colleges University Schools Senate ist its enter Church. It is number of alumni who proud Christian, im- the Methodist particularly ministry. age strongly in the Methodist. college community named above the criteria and law we
Applying principles to this reach that it College, we the conclusion is sectarian Amendment, con- legal a under the may sense First in the Bill. grant receive the named Whether stitutionally sense not an institution such a legal educational is sectarian matter, nature. ephemeral is a rather somewhat being elusive Hence, deliberately attempt we have made no to enunciate thereto, hard, fast, intractable in regard preferring, rule above, of its upon totality as indicated to decide each case .attendant circumstances.
Here, re- College distinctly have a the stated purposes “flavor,” reso- indicate considered they clearly ligious *28 The Board religious lution to activities exercises. promote n ofTrustees consists of 27 Methodists in a membership And, of Protestants. being all of the remainder virtually course, Methodist at more than one-third must be least one Ministers, closely to the Church.” college very “binds the Protestant; and entirely almost The administrative officers are Methodists in a membership the consists faculty full-time (cid:127)of 51. all said concerning of what we above repeat
We shall not the the bill nothing We find on face of College’s the activities. the to to use history purpose (cid:127)or its demonstrate legislative aid but a careful considera- religion, to coercive power State’s all to the conclusion the impels opera- tion of the facts us that such, if As stated the be effectuated. grant tive effect will be n footnote any most to establish institu- way “The effective * * a church in its еither Financing is to finance *. tion equally other activities is activities in its (cid:127)strictly religious ** Presi- that all the When it is conceded -unconstitutional ministers, dents many have been Methodist that of the students time, in religion become interested for the first that seriously ministers limited the children the scholarships given denomination, of one that are awarded to scholarships pre- denomination, ministerial students of that its is one campus faith, available, cost, organizations made to one belonging preference given to “borderline cases” one denomina- selection, tion and that the “basic student-body purpose” the is to best in education College provide higher “within our framework and and values of atmosphere verities faith,” cetera, ours) Christian et how can it seri- (emphasis in- ously argued grant tax-raised funds to such an * ** religious stitution not be support would “to activities institutions, be called may they whatever or whatever form teach or may religion” ? adopt practice Moreover, has no due College attempt (possibly made to the fact that the had not been filed when the testi- opinion herein was mony comply with the set taken) requirements Etc., i.e., forth Murray, supra, this Court in “if a by statute ends, furthers both secular an examination of the means used determine necessary to whether could State have secular end reasonably attained the means which do not further religion.” promotion suggest that appellants desired, could have the secular accomplished purpose involved, question without activities becoming grant same one of making several non-sectarian educational institutions in the State. further,
Without laboring the hold question we that Chap- ter transgresses Clause, proscriptions Established isit consequently, unconstitutional invalid.
NOTRE DAME 66 of the Chapter Acts of the Assembly General of 1962 grants $750,000 to this College to aid in the construction of a science building.
Notre Dame’s stated are and re- purposes deeply intensely ligious. The theory of Catholic education that is Prayer, Holy Mass and the represent forces,” Sacraments “the Unifying and “the instructional program interlocks with the non-instructional means, program; objectives with mеthods and and all to an es- sential, are unity.” objectives “All of College’s] interwoven [the in insti- degree every in some The implemented department.” tution’s whole life is lived in the Catholic atmosphere, ** * in assumes life to be lived terms earthly prep- God,” end, aration for the life and “har- future with to that its and theology monizes” entire with “program philosophy College The entire program Catholic Church.” at- is so ordered “that life and and the study student’s] [the motivated, and are college permeated, enlarged mosphere and by the Catholic integrated way developed expressed of life in Mass of daily prayer, liturgy, Holy Sacraments * * ours.) Church.” “And Outward Grace *. (Emphasis Since are the Christ-thought, the Christ-word the Christ-deed women, in- in a community living college norms Catholic timations of this should be found In presence everywhere: * * expresses “This our the Class Room Chapel—[and] college aim to have the the whole spiritual support vivify taken “God from evidence. atmosphere.” Extracts Exhibits classroom, home, in the labora- you bless your apostolate office, Lady.” (Sentence business etc. Our tory, Gratefully Miriam Girls 1961.) your from a letter of to the “Make Sister $750,000 a Christmas Gift meet the year. this payment Help Building building Grant for involved Matching the Science [the * * *. And in the under know grant Chapter you 66]. is a God for the furtherance of your College gift to the gift generosity bless May you the Christ Child your his work. * * December, Miriam dated 1962). from (Letter Sister erected, building If class the new science will open each awith prayer. or- by Catholic religious
The board is controlled governing to Catholic dis- members are committed completely der whose The administration is al- philosophy. and educational cipline faculty nuns entirely religious. predominantly most of the religious Provincial appointed by Superior who are in consulta- board), of the governing order Chairman (who President, who is also a member of order. Ad- tion on are chosen the basis of commitment ministration and faculty ideals, and are overwhelmingly college objectives to the students are candidates for a re- Ten cent of the per Catholic. *30 order and ligious more than 97 of the whole student body are % This Catholiс. percentage cannot deemed coincidental.
The college owned and has been financial given as- heavy of, sistance religious order. It it a officially member and a number supports, Catholic and insti- distinctly associations tutions. It its makes available for use campus by the Catholic and Church related but not to non-Catholic groups, organiza- tions. It has close ties with the Archdiocese of Baltimore.
Catholicity permeates the sur- college program: physical roundings; the rich variety college-sponsored, exclusively observances, Catholic many of which are for Cath- compulsory students, olic curriculum; if not for the entire student body; the activities; extracurricular and the student and coun- advisory seling program.
The college and the accrediting level agencies report high of success in achieving the religious objectives of the institu- alumnae, tion. The and as an consti- individually organization “an tuting integral of the part” college en- activity, deeply gaged promotion defense Catholicism and the Cath- olic Church. college
The provides supplemental Cath- programs strong olic religious content nuns teaching parochial schools and in its Adult Institutes community Its large. image in the community, expressed its publications, constituen- cies, Archdiocese, ceremonies, relations with the and way of life in general, is distinctly intensely Catholic.
As the situation presented by the facts relating Joseph to St. College Dame, are so analogous to those Notre we regarding set forth Joseph’s fact picture stating St. before our holdings reference Notre Dame.
ST. JOSEPH COLLEGE 545 of the Acts of the Chapter Assembly General of 1963 $750,000 grants College Joseph erecting St. assist science building. relating evidence to this institution is so similar
Since curtail, somewhat, Dame, to that regarding Notre we our anal- thereof. ysis
The stated purposes Joseph College seem to be St. even than strongly religious more Notre Dame’s. The order government has control of the complete dedicated nuns and abide of strict The nuns have taken vows administration. achieving with a view The is chosen faculty obedience. example, both college, by precept ideals whole, Catholics; it, as a is sympathetic given preference majority of education. to the Catholic philosophy *31 nuns, are but a small and there faculty priests are Catholic body includes The student number of non-Catholic members. order, been consistently and has religious candidates for the Catholic; students approximately virtually 90% 100% schools. The Catholic high parochial are Catholic graduates design. student is achieved body character of the college through corporate The order owns religious assis- of the financial virtually form and has provided 100% income. and above operating tance needed over with, Cath- distinctly and supports, is affiliated college The Dame, institutions, and, is a like Notre associations and olic The of America. University Catholic certified affiliate of the exclusively by have been uses the campus supplementary religious groups. Catholic Religious religious. are surroundings strongly
The physical textured, Catholic, and extensively richly is strongly observance orientation of Theocentric in: “In general, participated encouraged.” student’s life is Christian Joseph found St. specifically have accrediting agencies The alumnae, in- objectives. to be its accomplishing the num- are distinguished an organization, and as dividually ac- orders, high percentage ber member of workers, alumnae asso- to the and the devotion tive Catholic and ideals of the principles “to objectives: promulgate ciation’s * * * the interest of the defending promoting Catholicism Church, and in supporting education Catholic promulgating its activities.” the Church and are Cath- strongly programs instructional
The supplementary olic, community. in the college as is the image crucifixes, erected, will house building the new
If science statues, waterfonts. “very likely” “maybe” Bills of the above two find on the faces nothing we Again, to use purpose to demonstrate or in their histories legislative but a consideration religion, to aid coercive power State’s of attendant circumstances a conclusion that totality impels their grants effect demоnstrates operative (if effectuated) such a It must be remembered that here involved are purpose. institutions, grants direct tax-raised to the educational funds themselves, which will of the buildings become sole owners if erected. If contention in the appellees’ nothing that there Clause which direct to aid and proscribes grants Establishment correct, sectarian support educational institutions were it seems Everson, supra, would have been decided quite easily dissent, without even no direct in- though grant was there volved. The funds here different from entirely involved those Wheat, in such cases as Board v. 174 Md. Education Everson, Everson, supra. In Court ruled that Supreme a State could constitutionally finance bus chil- transportation dren schools, to parochial as well as public ground on the “public involved was welfare legislation” all chil- (protecting dren from traffic hazards and dangers), under the provi- sions of the First Amendment no could exclude individ- uals, because their faith, from receiving the benefits of such Wheat, In legislation. this Court ruled constitutional a statute *32 which required the Board of (under limitations Education distance, to etc.) carry to parochial students to and from their schools upon the same conditions that public-school students were carried, on the ground that the statute protected safety of the children while en route to and from schools. No direct grants or money to property educational institution any were case, involved in either but the Supreme Court 5 to 4 split issues, and this Court 5 on to 3 with vigorous dissents be- ing filed in each case.
In basing its holding on public legisla- welfare Everson tion, the Supreme Court was careful to say:
“New Jersey cannot consistently the 'estab- lishment of religion’ clause of the First Amendment contribute tax-raised funds to the of an support insti- tution involved [directly therein were students in pa- rochial church, educational schools—no or institution set aside especially was in- worship, volved which teaches the tenets and faith of any J church.” amount,
And “no tax in small, large or can be to or institu- any religious levied activities support tions, called, form they may whatever whatever they may preach practice religion.” to adopt do not deem to what materially We it desirable add we said already Maryland. have with reference Western Dame and them- relating speak facts Notre Joseph St. think show that the effect of they clearly operative selves. We demonstrates, grants made) Bills are to be (if permitted sense, in a and to use the purpose constitutional State’s legal made, if would coercive to aid that the power religion; grants, of tax-raised funds to constitute contribution by partic- the tenets and faith of a institutions which teach support church; the funds for the ular the taxes levied to raise activities and grants support religious would be levied to help religious institutions. in his work Cath- agree McCluskey, We with Neil J.,S. J. Education, on he stated: “The Viewpoint
olic wherein p. direct basic laity fully sup- are aware that clergy Catholic is out of the government ques- schools port by parochial Court would such Supreme interpret tion” because “the U. S. Federal action as a Constitution.” contravention We, therefore, Notre are Joseph that both Dame hold St. Amendment, in a under the sectarian sense First legal it; made to hence can receive the constitutionally grant neither 66 of the Acts of 1962 Acts Chapter Chapter and invalid. unconstitutional CLAIMS. CONSTITUTIONAL THE MARYLAND circumstances, to con- unnecessary it would be Under some but, above, sider these contentions after our should we holdings Constitution, the grants Maryland find that the violated Su- different reference to might Court assume a attitude with preme if our we decide to the so reviewing contrary; conclusions than deem it the same. we desirable answer *33 of of inter Rights
Article 23 our Declaration provides, alia> life, man of his liberty, property that no should be deprived of his the peers, except “by judgment Law to the this out call attention fact Appellants land.” point herein that we have held the of the land” is phrase “Law of of law” used in the Fourteenth “due equivalent process
685
Amendment
the Federal Constitution.
then
“for
They
argue,
reasons,
authorities,
grants
the same
and on the same
as the
Fourteenth
of
guarantees
process
violate the
Amendment’s
due
law,
of
the prohibition
have been construed
include
establishment,
an
against
contained in the First
religion
of
* *
ours),
Amendment
Art.
(emphasis
grants
violate
23
is
that
of
quite
It
true
we have
equated
phrases “Law
land” and “due
for
Matter
process
example
law.” See
Easton,
What we
said
just
appellants’
have
answers
contentions
regard to Article
It
true
under
is
that
this
Leg-
15.
Article the
islature is inhibited from imposing taxes other than for public
Baltimore
purposes.
&
R.
Co. v. Spring,
S.
R.
This us 36, which, in part, Article do the violate grants be answered: to compelled frequent, to be ought any person “nor provides: contract, maintain, contribute, maintain, to any or or unless on ministry.” or place any worship, just language of the similarity call attention to Appellants in Virginia, famous Bill passed that in to quoted Jefferson’s 2d, Am. Desk Book), supra it also as Document (see Jur. rather in closely point, that are cite several out-of-state cases light Article 36. In the herein violated and claim the grants and reasons the separation-of-church-and-State the history the First Amendment by given and the broad provisions scope Bverson, supra, it can- with Supreme beginning Court cases force, in entirely lacking contention is not be said that the us as an new entirely proposition, if it to presented were be answered. Al- as how it should raise some doubt might of this previous seem to be decision though any there does not how, directly why, we think an examination point, Court Constitution, the came into our and when the first provision made, this and the decisions of changes therein subsequently meaning on of the degree provision in some bearing Court violate Acts herein do not a conclusion that involved compel Article 36. before adopted years first Constitution was
Our and 11 before the years adop- Bill referred to above Jefferson’s tion of the Federal Constitution. granted This first Constitution faith; and, to all those the Christian tolerance substantially therefor had to compelling support reference 1776, it had been one. Prior to same as our current provision levy support taxes for Maryland practice clergy of the Church and also to religion support Christian of Rights our first Declaration England. Article XXXIII of XXXVI), Article after granting precursor present (the religion, who the Christian we professed tolerance to those above, to be com- ought that no pointed provided person out maintain, par- or contribute maintain any pelled frequent, particular Immedi- ministry. ticular place worship lay ately following, Legislature “gen- it stated that the could eral of the Christian equal support religion,” tax for the over” in the individual right taxpayer “appointing with the support him “to the money paid by any particular place * * Acts, or minister It further worship provided collecting building monies for lately passed, repairing par- force, should and that ticular churches or continue chapels England encumbent of the Church of should be entitled every act, “the established receive provision support *35 entitled, ‘an act for the of the church of clergy support ” in this Province.’ England, Bill establishing the of Notwithstanding passage Jeffersоn’s religious freedom and taxation to “re- preventing support any ligious worship, Virginia or in 1786 and place ministry” the of the First Amendment in adoption 1791 at that time (which did not to the it was until 181016 apply states), that the of fit the people Maryland saw to take of away authority the Legislature to tax to churches or ministers support by amend- of ment the Constitution. This amendment “that it provided ** * shall not be for lawful the to general assembly lay * * * tax, equal general or tax for other the any support of any religion.” (Emphasis added.) Constitution of 1851 granted tolerance and religious to “all liberty persons,” and changed provision under “any consideration from partic- ular place worship, any particular to ministry” “any place of worship ministry,” it is as today. given
We have this brief background of Article 36 to show that Maryland was obviously great no hurry prevent tax- ation to certain support religions or to grant religious tolerance to all no matter what persons, be might their faith or lack faith. We indicated above that there are several decisions of this Court that have some bearing upon the issue now under consideration. We shall Wheat, name some supra, of them. in- volved free transportation children to parochial schools on public-school buses. The Act was as challenged being one that levied taxes for private a purpose, and as being violative Article 36. After finding that the Act was sustainable under police power for providing safety children and aid- ing enforcing the law children of certain requiring ages appellees 16. “It Four of stated: not until the Constitution authority Legislature of 1851 that support for tax religion apparently of the Christian was eliminated.” This Niles, Maryland Law, p. 379; Poore, error. Constitutional See 1 (1878), Charters & Constitutions 832. 688 ** * stated, school,
attend the Court “this conclusion renders it consider re- unnecessary separately objection * * Art. must ligious institution aided. 36 *. The institution incidentally, as aided the aid only only by-prod- considered This, uct of action.” was a proper legislative by implication, did strong indication that the Court not consider the Act 36, Legislature, in the exercise of violate Article even transgress cannot constitu- police power, specific State’s hence, 36, inhibitions; had tional the Act violated Article legislation. would not have been constitutional State, John’s v. 15 College Then there are the cases St. 330, Purnell, 629, College Allegany v. 23 Md. John’s Md. St. 121, Mary's 22 Md. Industrial County Maffit, v. School St. 310, 335, 336, Brown, Mary v. 45 Md. Clark Boys v. School for Institute, Institute, 643, Baltimore v. Keeley land Md. Cumberland, Md. Finan M. C. C. Md. v. & in each holdings others. We shall not possibly analyze these, Parke, mem dissenting we for the Judge think *36 Wheat, He stated: supra, correctly summarized them. bers of Assembly “Thus the General appropriations and to various paid funds are made public customarily state, are throughout and institutions the bodies are, in many and which managed, owned and privately will instances, of character. It sectarian and origin examination, found, of that this employment upon but has for private purpose funds not been public that this em- It this upon ground one. is public for has sanctioned moneys of been public ployment or direct bene- of court. If an incidental decisions this be- resultant advantage this recipient, fit result negligible para- and because comes immaterial ren- essential nature the service and public mount has factor that the either and of the further State dered or not assumed the fully performance undertaken involved, or function service of the public [citation]. limited, mot when so is grants, such validity sectarian circumstcmce. by any [citation] affected Thus, supply educational imtitutions which grants mechanical, training learning and instruction others arts which the industrial, agricultural does not offer or undertake to afford universal State no has service contention that ever Maryland [there universal instruction adopted public college made without to whether reference freely level] otherwise, the recipient be denominational or [cita- tion Maryland legislative cases and grants] Simi- in aid of larly, grants hospitalization pa- sickness, tients for care and treatment in injury disease, alcoholism, for chronic [citation] [citation] infirm, for homes for the for chil- aged and for orphans, dren, blind, children, for the for reforma- crippled tories and for other purposes which are within the functions of the as conducive to the welfare of State inhabitants, its to the pursuant mandate of the Declaration of Rights: ‘That the Legislature ought encourage virtue, diffusion of knowledge and education, extension a judicious system general literature, the promotion arts, sciences, agri- culture, manufactures, commerce and and the general amelioration of the condition of the Article 43. people.’
“In these grants the makes no dis- advisedly no{rá-denomma- tinction between denominational and institutions, tional nor has it limited its appropriations to race or color. The grants so made special public find at once their purposes justification and vindica- tion in the promotion general welfare in those matters of concern in public gov- which the respect ernment had not theretofore undertaken completely In although short perform. paid to a private person, appropriated for a money expended public use.” (Emphasis supplied.)
alsoWe
see some
our
relationship to
issue in
present
*37
Home,
holdings Baltzell v. Church
690- 187, 130, Cas. App. C.) aff’d 200 U. wherein (D. George- S. town College, which was an educational institution under the order, of a religious control Jesus, known as the Order of sect, held not to be a sectarian institution a order religious or denomination. This last case has significance, especial the law in the District of Columbia was then the same as Maryland, was one of opinion the last of its then Chief Alvey, who had formerly been a most distinguished Justice Judge Chief this Court and was familiar with thoroughly Maryland law.17
Thus it is seen that to educational grants institutions level where the state has not universal attempted provide never, educational facilities for its citizens in Maryland, have 36, been held to be impermissible though under Article even the institutions be under the order. control may We, therefore, And we see no reason hold otherwise now. hold none grants violates Artiсle 36. states,
This conclusion is bolstered that all by fact Vermont, Maryland have except explicit provisions pro- to schools controlled hibiting appropriation public money by religious organizations. Note Yale 917 for 46 SO See L.J. them, and we are informed that the Constitutions of Alaska and Hawaii explicit have also. Had the provisions people grants, desired to its relative to such Maryland change practice similar certainly likely would be would have made after so states had provisions done so. many Also, Health, Welfare Department Education Schools, The and Noun-Public pp. Misc. Doc. No. having 16-17 filed as Plaintiffs’ cites no Maryland Ex. against grants schools. specificprovisions in part,
Decree and reversed affirmed cause remanded part; and a decree m accordance entry of this costs to be opinion. paid appellants, by byY Y College, Maryland Western Y Joseph College, St. Y Dame College. Notre incidentally, And, a member of he was also the Constitutional 17. adopted the of 1867. Constitution Convention
691 J., Hammond, dissenting part, following filed the opinion, Hornby JJ., Marbury, concurred. in which that I brethren of the the individual agree my majority re- under standing grants have and that the appellants capital 15, 36 of do 23 or Art. view not offend or violate Art. Art. the of I cannot with their Rights. agree Declaration Maryland to West- grants Maryland conclusions that the the of by State wing ern be used as a science Maryland College buildings of College and a hall and to and the dining Joseph College St. to the Notre of for science amount Maryland buildings, Dame mandate establishment of to the religion by contrary State States, of the first to the Constitution the United amendment states, on under Supreme made the decisions of the binding Court, the fourteenth amendment. by
There can be no rational doubt from the the rec- evidence noted, fol- ord and facts that can be properly judicially lowing : that has for a hundred and
(1) Maryland over State general, followed a and non-discrimina- eighty years systematic financial fur- tory assistance to institutions pattern private secular In nishing higher Legislature a education. 1784 the sum of 1250 use of granted annual pounds St. Johns 37). 107 of the Laws of there was College (Ch. By Ch. authorized an annual to Charlotte Hall grant (which School had by been founded the established church before the Revolu- Williams, Hopkins In Johns Univ. v. 199 Md. 399- tion). Court, for the listed Judge Marbury, capital grants Chief from by higher learning Maryland to institutions 1904 to 1937.1 fifty years ago, “Thus, 1904, nearly public building 1. loan Chapter $1,625,000 in the amount of was authorized year. $57,000 purpose Acts that for the of that Of amount was completion buildings Maryland Agri- construction for the collegiate predecessor College, cultural which was Maryland Mary- University College time, Park. At having semi-public institution, Agricultural College land was a private public stockholders, property both and one-half of its not, State, appropriation
was owned so to it perhaps, perfect legislative interpretation. However, same in the buildings act, $5,000 given for the construction at Charlotte and federal Maryland that under both law constitutional (2) such are for a use and grants public standards purpose. Rights Declaration of in the sen- Maryland provides opening tence of Art. 43: *39 ought
“That the the diffu- Legislature encourage virtue, sion of and the extension of a knowledge judi- School, privately institution, $5,000 Hall owned for a construction Academy, Mary’s institution, $175,000 similar for the of St. a and ground Maryland purchase of lot in for the a of Baltimore In- stitute, institution, private a and for construction of also a the Chapter building by thereon. This was followed in 1913 90 of that year,, provided $600,000 for the issuance the which of worth of bonds, proceeds paid the of were to be to the which State’s Johns Hopkins technological University for of That the erection a school. appropriation maintenance, act also for included an annual and provided scholarships, might argued possibly for and it that the by scholarships However, 1933, constituted a consideration. provided Chapter 464, general $1,750,000 loan a construction of for gift proceeds .$30,000 College a of for new from the a St. John’s Washington College heating plant, $30,000 and for and on ac- 1934, passed. count its of indebtedness. In there were four acts Chapter College 374 authorized a loan the amount St. John’s $110,000, proceeds present pay of the of in- which were the Chapter college. debtedness of the 380 created state debt of a $3,460,000, proceeds $100,000 given of and the was to St. John’s By College equipment purposes. necessary for and construction Chapter 366, Maryland College $135,000 the Western loan of was created, to be turned over to the Board of Trustees of Western Maryland College equipment for the construction of a science and 369, authorized, building. Chapter $100,000 By a state debt of was proceeds given to be Board of the of and Visitors Governors equipment Washington College 1937, by for construction. In and Chapter Morgan 666, College $135,000 created, the loan of the was proceeds equipment in- to be used the construction and of an Morgan College, .building private dustrial science at then a institu- tion, acquired by 1937, Chapter 487, but later In the State. general $9,053,000 authorized, $163,000 issue was of which bond of School, buildings for the went construction of at Bowie Normal $35,000 improved supply construction at of water Maryland Boys. 1939, by Chapter Training School for In created, payment $50,000 debt a state to be used for constructing equipping buildings of the deficit in new recipients private All non- Charlotte Hall of these were School. profit corporations.” education, cious system general the promotion literature, sciences, arts, commerce and agriculture, manufactures, and the of the con- general melioration dition of the People.” Wheat, In his dissent in Board v. 174 Md. Education
335-37, Judge Parke well summarized law practice discussion, which, as to the correctness of can there be no real disagreement. He said: to a payment pri
“Neither money otherwise, vate whether nor the person, corporate nature and of that is determina occupation person, tive Thus purpose payment. appropria tions by the General funds are cus Assembly public tomarily made and to various bodies and institu paid state, tions throughout which are owned privately are, instances, managed, many *40 found, sectarian and character. It origin upon will be examination, has that this funds employment public not been for a one. private but for a purpose public It ground this that this upon public employment has moneys by been sanctioned the decisions this If court. an incidental or to re direct benefit result resultant this becomes immaterial and cipient, advantage negligible because and essen paramount public tial nature of the service rendered and of the further factor that the has either not or undertaken not State assumed the of the fully service performance public Institute, function involved. Clark v. Maryland 87 643, 126; Md. 41 Article 43 of A. Declaration of limited, Rights. grants, of such when validity so is not affected sectarian by circumstance. St. Boys Brown, Industrial
Mary’s v. 45 School Md. for Thus, grants 336. educational institutions instruction and in training learning supply industrial, mechanical, agricultural and other arts of does not offer or which the undertake to afford State service are made without universal reference to freely be denominational or recipient whether otherwise.
694 State, 330; College John’s v. Md. John’s 15
St.
St.
Purnell,
629;
v.
College
Md.
Allegany County
* *
* * H* grants “In makes distinc- these no advisedly State tion between denominational non-denominational institutions, nor its appropriations has limited for grants public race color. The so made special find at their and vindica- once purposes justification tion welfare in those general promotion gov- matters of concern which the public respect ernment had theretofore undertaken completely short, per- In perform. although private paid son, for a money appropriated expended use.” public Education, 1, 7, In v. Board 330 U. Everson S. L. Ed.
711, 719, Court, Black, found majority Justice B A to Jersey New could tax reimburse constitutionally children a church school. He said: cost B’s transporting in legislation
“It is much too late to argue of children to get tended to the opportunity facilitate no Cochran purpose. secular education serves public Education, v. Board 281 U. S. Louisiana ” * * *. furnish a secu- donee here involved all (3) colleges four other to that furnished comparable lar liberal arts education ac- and are rank arts the United colleges first liberal States taught The courses accrediting agencies. credited standard same substantially colleges tаught in the four donee *41 for example, Hop- as similar colleges, manner at other Johns Goucher, in- religious used as vehicles for and are not kins or teach- ; by are chosen the individual the text books doctrination of the course and are knowledge supplying ers for their merit or of the re- orientation because religious chosen their not instances, most the same texts and, the author ligion of doctrine, and No colleges. other private are used at public inter- into or of church enters teaching dogma other taught. feres that are teaching subjects with the of the secular go graduate of four donee on take colleges Graduates the to of degrees equal graduates studies and obtain on an basis with other the best offering and at universities public private colleges courses, post graduate such and Columbia. Hopkins as Johns written, There for ad- are no oral requirements, and, mission of the build- colleges students to the donee finally, ings to be with funds will be which granted places erected will and further secular offered training colleges used for ceremonies or instruction.
(4) the a expanding population factors (a) rapidly State and the Country, increasing (b) proportion part of the which college college, attends and population age (c) an ever more which ever more complex society requires highly skills order indi- of more to developed people supply viduals affairs of and the government conduct the competent services, private and furnish and scientific economy professional facilities, human, have strained and the lim- college physical it, if not beyond, will combine more and more require such a facilities. Private furnish most colleges significant help in offering collegiate graduate training now available. It is said that there are private higher some institutions 800 are learning church-related. Country, See 109 Cong. If are to 1963). they ed. Oct. (daily Rec. continue part to do their and bear new load of increased enrollments, and, must have new facilities since private colleges traditionally have financial problems which limit their expansiоn, much the cost of new facilities must come from government, if it is come at all. The of Maryland, noted, has been has recognized this since early times federal likewise been government has aiding institutions of higher since the the Morrill learning passage Grant Land Act of go 1862. Federal funds which to colleges and universi- ties, sectarian, contracts, them number of for research loans and outright grants exceed two billion currently dollars year. setting
It is in this this background that the con grants made stitutionality Maryland Legislature Hood, Dame Maryland, Western Notre Joseph St. Col should considered and leges determined. The decisive issue
696 cannot be said to be simple, but is narrow—does finan State cial assistance to the secular educational facilities of a college which is sponsored controlled a church or a religious order and in which a religious there is atmosphere amount to the estab lishment of religion within the meaning the words of the first amendment as those words have been construed recently by Supreme Education, Court. The case of v. Board Everson 1, 711, 330 U. which occasioned the S. 91 dicta by L. Ed. Jus tice Black as to what the cannot do lest it breach the state, “wall of church and separation” between which he re Education, 203, in peated McCollum v. Board 333 92 U. S. 649, Watkins, 488, L. and Tor caso v. 367 L. U. 6 Ed S. Ed. 982, 2d and Chief in quoted Warren McGowan v. Mary Justice land, 393, 366 U. 2d which both the appel S. L. Ed. on, lants and the of the Court stress heavily majority rely held that the furnishing money the state to par reimburse ents the cost of their transporting children to parochial schools did not violate the amendment provisions first that no law shall an be made establishment of re “respecting ligion.” McCollum is since it dealt with the action point of a school administration in relation public to public sponsor exercise or instruction in the ship public schools. it, caso, Tor as I read held that the Maryland prerequisite an oath of belief in God to in- becoming public was notary essentially religious, because it non- employed although valid sectarian, means to achieve a secular no- proper goal—worthy the means had no taries reasonable relation. public—tо Closing held that ás writ- Sunday presently McGowan Laws no relationship ten and administered “bear to establishment those are used in the Constitution of the United religion as words States,” secular since serve the aid proper purpose is incidental. religion they give Supreme the decision Court v. Engel Following Vitale, 421, 8 2d which held that the 370 U. S. L. Ed. York schools of the so-called public recital New organized clause, of religion the establishment violated Regent’s prayer with the Court’s frustration and resentment views public clause increased and .there was widespread of that interpretation from ranging on the the reasoned point, criticism of decisions and tempered suggestions of Professor Sutherland Establish- Engel ment in 76 According Harv. Rev. that the rea- L. *43 soning Engel result were unsound to ill-advised and in- comments, often based on a temperate misunderstanding the In basis and effect the decisions. deciding Abington School 203, 844, v. Schempp, Dist. U. 2d S. which held L. Ed. comment, that the without at reading, the of each opening school from verses the day, Bible recitation in unison clause, prayer, Lord’s violated the establishment the Court, courts, in the traditional way did not acknowledge er- ror and adhered to views but was its particularly careful its into effect criticism opinion answer by specifying just what had then, been held before and was held being and to say, with words chosen usual, even more than just what the carefully law was. For this I reason ascribe great weight Schempp as guide to what will and what will not offend the establishment rule the has Court drawn. Clark, Court, pointed the out that religion con- Justice been
sistently has identified with history government our and that is religious freedom imbedded our public and pri- life. vate He then the cases prior reviewed and their holdings dicta, and said: indicated,
“As we have the has Clause Establishment been considered this Court times in directly eight and, the score of past years only one dis- Justice the it has senting point, on held consistently that the clause all withdrew legislative re- power respecting ligious belief or the expression thereof. The test may be stated as follows: what and the purpose pri- If mary effect of enactment? either is the advance- ment or inhibition then enactment religion ex- legislative ceeds as scope power circumscribed by That to say Constitution. that to withstand the strictures of the Clause there must Establishment purpose and legislative a secular a primary effect religion. advances nor inhibits that neither v. Everson Education, supra; Board McGowan v. Maryland, 442.” supra, supplied.) (Emphasis Comptroller, 241 Md. Murray, upheld Etc. v. in- grants tax to direct (equated validity exemptions recipient group) benefited dubitably in its organizations opinion by Judge Oppenheimer synop- that: holding sized Court decisions Supreme is to of the state action primary pro- “If purpose the Amend- action is violation of religion, mote ment, both secular and reli- but if a statute furthers ends, used neces- examination of the means gious reasonably to determine whether the state could sary which do attained the secular end means have of religion.” further the promotion made I grants four under consideration were think pursuant long-established public further secular practice re from them to purpose flowing and that aid benefit *44 grants be and incidental. The ligion slight, vague would purely educa will facilities will the secular help added supply and aid students who tional activities will religious groups now the people and hereafter attend the institutions can the number of those who Maryland by increasing State college a education and the education quality receive re The will not aid increased number will receive. grants or are ligion college or a who religious group; those attend are, have, al not in age at that inclined and religiously if cases, all a faith. particular most become attached to Students It will are not of the four proselytized colleges. donee students, not religion mostly aid or Catholic Church for more Catholic, Dame, or the to be able to attend or Notre Joseph St. students, Methodists, at Methodist more to Church for largely tend in receive Maryland College Western both cases to (and a better grants) degree education because of the to perhaps greater than it in benefit society general. religion will to or a sect is as small and as the bene incidеntal was fit religion to and most church in McGowan and to groups in parochial were enabled schools students Everson—more in attend schools reason of parochial grants approved If it delicately suggested be that perhaps Everson. Everson 1947, might not be decided in in 1966 thereafter as was 699 One, there are at least two makes it suggestion answers. large one of a of a only relatively judges number cases rank judicial below the Court should Supreme indulge not Two, speculation as to what that Court will has do. Everson been yet overruled and the in 365 U. Supreme Court S. 5 2d Snyder dismissed the v. Town appeal L. Ed. A. (Conn.), Newton 161 2d a Connecti (which upheld cut law authorizing transportation of children to a town parochial “for federal school) want a substantial question,” Schempp. was cited with approval Everson There is no in- reasonable aid to alternative private State stitutions of higher learning. might en- Theoretically, the State large colleges enough care all actual and potential students create new so. Tremendous public colleges do and, sums would more im- required either case what is portant, available physical faculty facilities administra- Note, tive staffs could not be In the Con- produced years. stitutionality Federal Financial Aid to Col- Church-Related 1353, 1358, leges, 77 Harv. out that points Rev. the author L. 2,000 higher institutions of in the learning United States church-related, 800 are and says:
“To exclude these higher learning 800 institutions of from federal aid would seriously effort hamper increase enrollment col- capacity to the where point leges will be able to handle demand expected present and distort the educational allocation students between denominational and nondenomina- * ** tional schools. pragmatic Such considerations if the would be irrelevant command of the Constitu- *45 clear; tion were a would then be constitu- remedy However, tional amendment. the lack of an al- effective highly ternative should be relevant a when plausible where, can constitutional defense be made and in an area of church-state criteria can be formu- overlap, governmental lated which minimize intrusion into re- ligious concerns without paralyzing governmental at- urgent to with national tempts cope problems.” 700 1356-57, author, at pp.
On question constitutionality, of says: hand, Clark opinions “On other Justices that federal aid to educa- Schempp
Brennan indicate For example, constitutional. tion would be considered constitutionality the test of Clark enunciated Justice to be a secular a effect primary legislative purpose religion. Similarly advances nor inhibits that neither em- would draw the line legislation Brennan Justice ploying re- essentially government organs to religious means using essentially or ligious purposes means would ends where secular governmental serve test, act to be would appear Under either suffice. free flaws” from constitutional colleges aid to church-related his that state and indicates view is constitutional. below, be grants I think the should
As did
Duckett
Judge
which, in
and state cases
addition
federal
Early
declared valid.
include,
cited,
in Mary
this view
already
support
to authorities
Home, 110 Md.
home was
(the
v.
244
land: Baltzell
Church
Episcopal
and controlled
supported
affiliated
no
Church,
a
needed
gift
legislative
found
Court
sect, order
“religious
or
gift
for a
required
sanction as
Williams,
;
Judge Horney Judge concur in Marbury the view here- in expressed and, I, as would would affirm.