*1 LEMON KURTZMAN, SUPERINTENDENT et al.
OF PUBLIC INSTRUCTION OF
PENNSYLVANIA, et al. Argued No. April 2, 71-1470. November 1972 Decided *2 Mr. judgment. Justice concurred in White Burger, J., judgment C. announced of the and an Court opinion Blackmun, Powell, Rehnquist, JJ., joined. in which and J., White, judgment. Douglas, J., concurred in the filed a dis- senting joined, opinion, Stewart, JJ., post, in which Brennan and p. Marshall, J., part took no in consideration or decision of the ease. P. Bruton
David With appellants. for argued the cause Rosen, Wulf, Melvin J. him L. on the briefs were Sanford and Franklin C. Salisbury. B.
William Ball appellees. for With argued cause him appellee on the brief for of Penn- Commonwealth Creamer, J. Shane sylvania General, Attorney Skelly, Gallagher, Rappaport, Joseph Samuel G. James E. Jr., Hodgson, Clark Valente. Jr., C. and William D. T. Henry Reath Pennsylvania appellee filed brief for of Independent Association Schools. Burger judgment announced the Chief Justice
Mr. and which Black- opinion Court an Justice Mr. Rehn- Powell, Justice Justice mun, Mr. Mr. quist join. 28, Pennsylvania held that stat-
On June we utory program nonpublic to reimburse schools sectarian for the Estab- certain secular educational violated services Clause of the case was lishment First Amendment. the three-judge remanded to for further District Court opinion. consistent with our Lemon v. proceedings Kurtzman, (Lemon I). 602 (1971) remand, On Court entered summary judgment District favor of appellants enjoined under payment, Act nonpublic for sectarian schools educational funds performed services after June 1971. The District permitted Court’s order the State to reimburse non- public sectarian provided services before our decision Lemon I. Appellants made no claim that appellees refund paid all sums Pennsylvania under the statute1 struck down in Lemon I.
Appellants, plaintiffs I, successful of Lemon now challenge scope the limited of the District Court’s in- junction. Specifically, assert that the District Court erred in refusing enjoin payment $24 some million *3 by set aside Pennsylvania compensate to nonpublic sec- tarian schools educational services by rendered them the during year. 1970-1971 school We noted probable jurisdiction, 406 U. affirm (1972), and we the judgment of the District Court.
(1) The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be only recalled briefly. Under Act 109, the participating nonpublic Pennsylvania schools of were to be by reimbursed the State for certain provided educational services by the pursuant schools purchase-of-service contracts with the State. According to the terms of the contracts, schools were provide teachers, textbooks, and instruc- tional materials for mathematics, modern foreign lan- physical guage, science, physical and education courses— “secular” courses of instruction. The State was only not compensate the schools for the services provided, but 1 Nonpublic Elementary Secondary and Act, Education 19, June Ann., No. Pa. Stat. Tit. (Supp. 1971). §§5601-5609 instruc- surveillance of the continuing to undertake also purchased the services tional to insure programs matter “any subject in provided not connection or the morals or of teaching, expressing religious forms I, supra, Lemon 609-610. of sect.” worship See any nonpublic seeking school Act, Under § pro- to “maintain such accounting reimbursement was separate of and cedures, maintenance including funds of accounts to the cost secular educational pertaining actually expended sup- it service, as to establish money to the port equal of such service an amount money in reimbursement.” To this sought amount subject were to be to audit end, school accounts payment Auditor Actual to be made State General. was equal of Public “in four Superintendent Instruction day on De- payable September, installments the first following March and June of the term cember, school school term which the secular educational service was (Emphasis supplied.) rendered.” I, Lemon In we that, although held Act 109 had secular the Act fostered legislative purpose, “excessive entanglement” of church through scrutiny requirement ongoing of the educational programs schools, statutory post-audit sectarian potential procedures, political involvement process. unnecessary We found it to decide whether Act *4 constitutionally infirm 109 was on the additional ground the “primary any payments effect” of to church-related promote schools would be to the cause in religion contravention of the Establishment Clause of the First Amendment.
(2) Against we backdrop, this turn to the events relevant appeal. to this June 19, 1968, On Act 109 became law. Approximately one month later, appellants publicly de- intention of clared their challenging the constitution- six ality legislation. During following the new implement Act, steps took to months, in January 1969, enter- promulgating regulations and, for for into service contracts the 1968- ing the first time year (then approximately school progress) 1,181 nonpublic throughout Pennsylvania. the con- schools submitted schedules June year, pre- clusion of the 1968-1969 school specifying expense during year cise items of for which reimbursement, would seek to be during made 1969- year. appellants 1970 school On filed June complaint, their Act asking that 109 be declared un- enjoined. and its enforcement Simultaneously with their 1969 complaint, appellants filed a motion for preliminary injunction to restrain responsible state officials from or “paying processing for paying pursuant any funds However, [Act 109].” appellants request preliminary abandoned the for relief in a of August 28, letter 1969, from their counsel Judge Appellants, Troutman. their describing position as a “sensible recognition practical realities of sit- uation, . . . withdrew from attempt prevent payment nonpublic initial to the schools scheduled for September 2 In the letter, same appellants’ [1969].” counsel mentioned payments scheduled for Decem- ber 2, 1969, but no attempt ever fact was made to enjoin those reimbursements.
On November 29,1969, a divided granted District Court appellees’ motion appellants’ to dismiss complaint failure to state a claim on which relief could be granted. Appellants filed a notice appeal to this on Court De- cember 17, 1969; at no time before or probable after jurisdiction April was noted on 20, 1970, did appellants move for interlocutory relief pending appeal, even though January on 15, 1970, the schools entered into service with the contracts State for the 1969-1970 year. school
197
the District
had no occasion to
Consequently,
Court
lite.
pendente
injunctive
exercise of
power
consider the
In September
began performing
the schools
for
year, compensable
services
the 1970-1971
under
school
January
109;
15, 1971,
terms of Act
and on
contracts
for
year.
28,1971,
entered into
that school
On June
Act
we held
109 unconstitutional
and remanded the
proceedings
cause to
District Court
further
con-
opinion.
with our
Not
appellants
sistent
until
filed their
summary
motion for
judgment,
did
August 1971,
prevent
first
indicate their
intention to
reimbursement
already
under
109
provided by
Act
for the services
during
year.
the 1970-1971 school
(3)
particular
Claims that
holding
of the Court should
retroactively
be applied
pressed
have been
on us fre-
quently in
years. Most often,
recent
we have been called
upon
decide
whether a decision
new
defining
consti-
of a
rights
tutional
defendant
in a criminal case should
applied
to convictions of
predated
others
new
g.,
Neil,
E.
Robinson v.
development.
Illinois,
Adams v.
Appellants they urge, as did in the Court, District a strange flexibility of amalgam and Appel- absolutism. lants assure us do require not seek to the schools prior to disgorge payments received under Act 109; same breath, appellants the. insist that presently dis- puted payment enjoined an because unconstitutional statute no rights; imposes “confers it no duties; it affords no protection; it office; creates no it is, in con- legal templation, inoperative as as though it had never been passed.” Norton Shelby County, 118 U. S.
(1886). Conceding that we have receded from Norton in a host of criminal and other decisions recent consti- tutional decisions relating municipal appellants bonds, nevertheless view precedents departures those as from the established norm of Norton. We disagree. process of reconciling the constitutional interests
reflected in a new rule of law with reliance interests upon founded the old is “among most difficult of those which have engaged the attention of courts, and federal . .” . . Chicot County Drainage Dist. v. Bank, Baxter 374 (1940). Conse- quently, our holdings years in recent have emphasized effect of a given constitutional on ruling prior subject conduct “is to no ‘principle set of absolute retro- invalidity’ depends upon but of active consideration 'particular relations . . and conduct . . particular . . of rights status, claimed to have become vested, prior determinations 'of deemed to have finality’; public policy in the light of the nature both of the statute ” Linkletter, previous application.’ supra, its Dist., Drainage from Chicot quoting County supra, Norton at 374. However appealing logic may have been in the abstract, its abandonment reflected statutory our recognition or even judge-made rules rely law are hard facts on which must mak people *7 ing decisions and their fact of shaping conduct. This life our legal underpins modern decisions a recognizing nonretroactivity. doctrine of Appellants per offer no suasive reason for the confining approach modern those involving procedure constitutional cases or mu criminal nicipal bonds, and we perceive ourselves none. Linkletter,
In the suggested test, Court a re often peated since, embodying the recent balancing approach; prior history we looked to “the of rule in question, the its purpose effect, retrospective and and whether operation will Id., further or retard its operation.” at 629. Those guidelines infra, are prob see helpful, 201-203, the but lem of Linkletter and progeny precisely its same is not the as that now before Here, us. we are not considering apply whether we will a new crimi constitutional rule of nal law in reviewing of judgments conviction obtained a prior under problem standard; is instant case essentially one relating appropriate to the scope of federal equitable remedies, problem a from arising enforcement of a state statute during period before it been had declared True, unconstitutional. the temporal scope of injunction brought parties has back to Court, this and dispute their play calls into values not unlike those underlying Linkletter progeny. and its But however we issue, the fact remains that we are asked re- 200 proper Court's evaluation of
examine the District decree. Cf. United equitable an implementing means Donnelly, States v. Estate 286, (1970) ; 295 S.U. id., (Harlan, concurring). at 296-297 J., equity
In
court is vested
shaping
decrees,
trial
corre
discretionary
appellate
broad
review is
power;
Charlotte-Mecklenburg
Swann v.
spondingly
narrow.
Education,
Board
27 n. 10
(1971).
Sunburst does may that we constitu- tional deciding interests in retrospective whether to attach effect to a constitutional decision this Court.
201 equity adjustment the instrument for nice recon- public private ciliation between the interest and needs well competing private as between claims.” as Bowles, Hecht Co. v. TJ. S. (1944). 329-330 Holmberg Armbrecht, See also (1946).
In equity, rigid as courts absolutes else, nowhere eschew practical and look to the inescap- realities and necessities ably in reconciling not- competing interests, involved withstanding that those interests have constitutional roots.
(4)
I
Lemon
ex-
fulcrum of
was
cessive
entanglement
church and state fostered
Act
unnecessary
109. We found it
to decide whether
“legislative precautions
principal
restrict the
Act
[of
109]
or primary effect
programs
to the point
where
do not offend
Religion
Clauses.”
The sensitive values of the Religion Clauses do not lend readily quantification themselves to but, despite the inescapable imprecision, we clear think it pro- posed Pennsylvania’s state funds distribution non- public sectarian schools will not substantially undermine the constitutional interests in Lemon stake I. Act *9 required Superintendent Public Instruction to en- by the sure that educational services to be reimbursed kept Under the religious free influences. Superintendent's supervisory was to have Act, task completed long been the 1970-1971 school ago, during year itself; Super- in the record nothing suggests that the did faithfully intendent not execute according his duties payment Hence, present disputed law. sums compel will no further oversight of the instructional processes of By sectarian schools. the same since token, the constitutionality of Act 109 settled, is now no there is potential further political for divisive conflict among the and legislators Pennsylvania citizens over the desira- bility degree or aid direct state to sectarian schools under Act 109. problems
Two having constitutional overtones remain, but their resolution requires compromise no of the basic principles of Lemon I. There is, first, impact of the single post-audit. and final The record indicates that post-audit process will only involve a ministerial “cleanup” function, that of balancing expenditures and receipts in the closing accounting only once, —undertaken and in that setting minimal contact of the State with the affairs of the schools. Second, there is the question of impinging on the Religion Clauses from the fact of any payment provides any state assistance or aid to sectarian schools—the issue we did not reach in Lemon I. Yet even assuming a cognizable constitu- tional interest in barring any state payments, under the District Court holding that interest is implicated only once under special circumstances will not recur. There present is no risk of significant intrusive admin- istrative entanglement, since only a post-audit final re- mains and detailed state surveillance of the schools is a thing of the past. At the same time, that very process of oversight an accomplished fact —assures —now state funds will not be applied for any pur- sectarian
203 proposed appear, single will even this poses.3 Finally, as scrutiny passing since payment long for services promised reliance on reflects no more than the schools’ expenses by prior for incurred them to June payment 1971. remote of constitutional harm
Offsetting possibility the keep the its are allowing bargain from the expenses incurred the schools reliance on the state statute made and reim- inviting authorizing contracts past performed by services bursement schools.4 weigh heavily It is well established that reliance interests shaping appropriate equitable remedy. of an City Kolodziejski, Phoenix v. 399 204 (1970); U. S. Houma, Cipriano City 395 701 Allen (1969); Elections, v. State Board (1969). 544 That 3 Kurtzman, (1971): See Lemon v. 403 S. 602 U. government eyes
“If the closed the manner in which its these grants actually allowing public pro- are used it would be funds to eyes mote sectarian If education. it did not close its but undertook needed, would, fear, parochial the surveillance I intermeddle in it way only Id., affairs in a that would breed rancor and dissension.” J., concurring). at 640 (Douglas, paradox
“The Court thus creates an insoluble for the State and parochial schools. The State cannot finance secular instruction permits religion taught classroom; if it to be in the same but if it taught promise religion exacts a . and enforces not so . . it, entangled entanglement’ aspect it is then in the 'no Court’s Id., (opinion jurisprudence.” 668 Establishment Clause J.). White,
Here, entangling paradox” the “insoluble is avoided because already accomplished supervision prerequisite to state aid has been present and need not enter into our evaluation of the constitutional payment. proposed interests at stake in the agree payments with the District Court that whether the We subsidy question payments under valid contracts or a constitute pay difference in our decision.” To characterize the “makes no nonpublic does “lessen the reliance of the ments as subsidies not upon subsequent hardship if payments them schools on or the Supp. 300, 304 n. payments are not made.” F. is reflected by the schools reliance there was such District finding. well-supported District Court deny dispute “that there was no found that Court for their any reimbursement the church-related upon them a substantial impose would services rendered meet.”5 difficult for them to which would be burden 304-305. Supp. 300, F. *11 is rein- appellee schools’ reliance significance tactical choice not by appellants’ that forced the fact pay- injunctive suspension of press for interim to I Lemon pendency of the during ments or contracts the may appellee well the schools litigation encouraged have upon to incur detriments in reliance reimbursement appellants the under 109. In ini- State June Act Though the that culminated in Lemon I. litigation tiated initially appellants preliminary injunction moved for a September payment to block of funds the for serv- during ices rendered the 1968-1969 school for rea- year, sons of their appellants request. own withdrew the paid September were in and December 1969, Funds in and March and June In 1970, en- State comment, turn, following The District Court’s in reflects the col loquy between appellants, that court and counsel for at the Decem 15, 1971, hearing ber after remand from this Court: perfectly willing
“MR. I SAWYER: am to concede —and I think here; I must we have taken no evidence —that was reliance. there state, that, And I question would like to there so is no about assuming I am practical matter, there was I reliance. think as a however, doing the schools continued to do what were before. sense, assume,
“JUDGE HASTIE: in Reliance I of deter- mining expenditures anticipation activities and this amount would be reimbursed? it,
“MR. I know SAWYER: school that escrowed but I would that, think, think that would be rare. And I have to live with I prepared go testimony unless I want to be to ahead and ask to take try prove and to that wasn’t so. . . .” schools; nonpublic with the contracts into new tered of these making block steps took no appellants funds, disbursing from prevent or to contracts June or March and December 1970, September school the 1969-1970 during for rendered services filed a notice had year. meanwhile, Appellants, by the time distribution this Court appeal only year It was began. for the 1969-1970 funds school in Lemon after the con- months after our decision I—six year perfected tracts for the 1970-1971 school per- had been all under those contracts after services to block their intention appellants formed —that asserted fall of 1971. payments due, Thus, beginning pro- nearly the State and the years, two would assumption appellants on the ceeded act recognition continue to adhere to a “sensible practical realities of the situation.” appellee
There has been no demonstration in- precise *12 schools of the amount of detriment by year in curred them the 1970-1971 school during expectation by of The com- reimbursement the State. plexity Pennsylvania’s of such a determination each of for 1,181 nonpublic schools that contracted with the State readily apparent.6 under Act 109 is But we need not school, As to each actual reliance would determination of subtle, premised largely credibility be on and not on facts of record. expenditure simply Nonreliance could because levels not assumed might 109; any remained well constant before and after Act school expenditures it in assert that would have reduced its educational particular expectation compensation some but for the of for certain Similarly, expenditures 109. other incurred in connection with Act expenditures inquiry for those items could not be limited to any gamut by expenditures specified Increased for of the the Act. might incurred in reliance on reim activities have been of school's for services covered Act 109. bursement uncertainty. of On this record the dwell on the matter reasonably part find on Court could reliance District reasonably appellee schools and could conclude that retrospectively no more needed to demonstrate was of degree their reliance. foolhardy
It argued, though, is rely any on whatever, reimbursement view of the Pennsylvania constitutional cloud over the program from the outset. We conclude, however, that our in Lemon I holding “decid an im- issue first [ed] pression whose clearly resolution not was foreshadowed.” Huson, Chevron Oil Co. S., 404 U. at 106. A three-judge district court, upheld one dissent, with Act after, Soon another three-judge district court Rhode Island held unconstitutional the Rhode Island statutory scheme we together considered Pennsyl- vania’s Lemon I. program in Nor were district courts alone disagreement over the constitutionality Lemon-style plans provide financial assistance to sectarian schools. This Court was itself divided when ultimately issue was after resolved full briefing argument. And the Court acknowledged “that we can only dimly perceive the lines demarcation in this extraordinarily sensitive area law.” I, Lemon S., at 612.7 7According dissent, appellees to the can “tender no considerations equity” they warning” because had “clear were “tread
ing ground.” on unconstitutional apparent premise this is assertion the view the Establishment Clause forbids moneys all use of tax “support” or to “subsidize” sectarian schools. decisions, Yet the prior Court’s I, *13 to and at the time of Lemon shied away sweeping application from this Clause, Establishment favoring particularized analysis instead of state involvement in reli gious schools, analysis with the upon based the facts and circum Tilton Richardson, stances before us. v. 403 (1971); U. 672 S.
207 109 on Act attack be constitutional would That there case where this is not a outset. But from the plain was that in bad faith or appellees that acted it could said case, In this unlawful statute. they plainly relied on a persuasive that clarity of is not hindsight even the I predicted of Lemon could be resolution reliance appellees’ undermine with assurance sufficient to on Act 109.
(5) In down to appellants’ position the end, then, comes un- this: reliance whatever the schools was justified 109 was an “untested” state statute because Act validity authoritatively been determined. whose had never argument governments The short answer to this is that they if high responsibilities. must act are to fulfill their governments As one scholar has the diverse state observed, preserved by separate the Framers “as sources of authority point of administration —a on which organs they hardly Principles, had a choice.” H. Wechsler, Politics, (1961). and Fundamental Law 50
Appellants ask, effect, charged that we hold those executing legislative peril state directives to their unraveled if before having arrangements act there been judicial has an authoritative determination governing legislation Appel- is constitutional. stay would have state lants officials their hands until enacted newly programs are “ratified” the fed- eral or risk courts, draconian, retrospective decrees should In appellants’ fall. our legislation view, position Comm’n, Walz Tax Board Edu (1970); v. U. Allen, cation Everson v. Board of (1968); 242-243 Education, (1947). is, then, 330 U. S. There no basis for the suggestion “unequivocal” the Court pro dissent’s has been scribing religious all state assistance to schools. *14 seriously of legis- undermine initiative state
could say Until judges and executive officials alike. lators Pennsylvania— of otherwise, officers—the officers state carry to forward the power have the directives may, Those officials some circum- legislature. state judi- to until an stances, acting elect defer authoritative has pronouncement secured; particularly been cial but prece- are no fixed when there and clear constitutional dents, essentially political choice is one of discretion one this Court has never conceived as an incident of judicial post review. We do engage lightly not hoc political evaluation of such as it judgment, founded is on principles “one the first adjudica- tion —the basic presumption validity of the constitutional duly of a enacted state or federal San Antonio law.” Rodriguez, School District v. ante, p. 1, (1973) at 60 J., concurring). (Stewart,
Federalism suggests that federal court intervention in judicial processes state be appropriately confined. See Younger Harris, 37S. (1971), companion cases. Likewise, requires federalism injunc- federal tions to unrelated state courts shaped be with concern and care responsibilities for the of the executive and legislative branches of governments.8 state In short, the propriety of the relief afforded appellants by the Dis- trict Court, applying equitable familiar principles, must be against measured the totality of and in circumstances light general principle that, contrary absent direc- 8 This say, is to course, not range the flexible of federal injunctive powers permit should curtailed so as to state officers proceed regardless their business of serious constitutional questions concerning legislation. Indeed, state significant purpose preserve rights of these is tools parties of all and to minimize unnecessary during protracted harm the often pendency of constitu litigation. tional they deal are those with whom
tion, officials and statute, valid state rely presumptively on a entitled plainly unlawful. by no means faith and good enacted
Affirmed. judgment. concurs in the Mr. Justice White in part no the considera- Mr. took Justice Marshall case. tion or decision this Bren- whom Mr. Justice Douglas, Justice
Mr. dissenting. concur, nan Justice Stewart Mr. is much a violation of Establishment There as payment Amendment whether Clause the First involves last public from schools funds sectarian in year. Madison his the current or next year, year, authority which same can Remonstrance stated: “[T]he pence only prop- of his force a citizen to contribute three force erty support any establishment, may one for the him to . any conform to other establishment ...”1 year or grant teaching
Whether the is for last present taxpayers are forced to contribute to sec- time, part tarian a their tax dollars. schools I, Lemon practice The ban on that is not new. 403 change did not announce a in the law. U. S. We 602, again had over and over the use of announced tax- payers’ money support parochial schools violates the applicable First made to the Amendment, States vir- tue of the Fourteenth. in unequivocal words in
We said Everson v. Board of Education, 330 “No in 1, any amount, U. S. 16: tax
1 Against Religious Assessments, Memorial and Remonstrance (G. 1901). Writings 183, 2 of James Madison 186 Hunt ed. Education, reprinted in Everson Remonstrance is v. Board 330 (Rutledge, J., dissenting), Comm’n, and in Walz v. Tax U. S. dissenting). J., (Douglas, 397 U. S. activ- support religious can small, or be levied
large they may or what- called, whatever institutions, ities or they may adopt practice religion.” form to teach or ever Clauson, idea in Zorach v. We reiterated the same Maryland, in McGowan v. 366 U. S. 306, 314, in Watkins, 420, 443, Torcaso v. 367 U. S. McCollum, repeated We the same idea v. Board of Education, 333 U. 203, 210, and added that State’s tax-supported public could not be used “for the dissemination of religious doctrines” nor could a State provide the “pupils church for their religious classes through use of compulsory public State’s school Id., machinery.” at 212. Justice Brennan separate opinion his
Mr. I put Lemon the matter succinctly when said, he *16 more than a “[F]or century, consensus, en- forced legislatures and courts with substantial consistency, has been public that subsidy of sec- tarian schools constitutes impermissible an involve- ment of secular with religious institutions.” U. S. 642, 648-649.
So there was clear warning that those who proposed such subsidies were treading on unconstitutional ground. They can tender no considerations of equity that should allow them to profit from their unconstitutional venture.
The presented issues in this type of case are often caught up in political strategies, designed to turn judi- cial or legislative minorities into majorities. Lawyers planning trial strategies are familiar with those tactics. But those who use them and lose have no equities that make constitutional what has long been declared to be unconstitutional. From the days of Madison, the issue of subsidy has never been a question of the amount of the subsidy but rather a principle of no subsidy at all. criminal retroactivity involved problem
The is question There the inapplicable. therefore cases is fairness to the newly goes announced rule whether the rule. completed under the old of the had been trial that Here Jersey, Johnson New 726-729. See v. U. S. The rule is rule an old rule. supplanting there no new days of no the dominant one subsidy has been since that of Madison. deal with the normal situation We judicial they determine Normally governs decisions. legal rights obligations respect events already By have courts decide transpired. definition, disputes already A has litigant that have losing arisen. equity no “relied” on advice fact he turned out to wrong.2 be unreliable or A decision over ruling prior may deny a due authority litigant at times a process if applied retroactively. See Brinkerhoff-Faris Savings Hill, Trust & Only Co. a com U. S. pelling judicial circumstance has been held to limit a prospective ruling applications. disruptive effect in criminal law example. enforcement is one Stovall v. Denno, 388 U. S. 300. Likewise, ruling on the legality municipal only pro bonds been given has spective application many prior where bonds had been in good contrary City issued faith on a assumption. Phoenix v. Kolodziejski, 399 213-215.
Retroactivity of I the decision in Lemon to the goes very core of the integrity judicial process. Con- principles stitutional ride on do not argu- effervescent ments advanced *17 seeking those to obtain unconstitu- rejected States, rule of Bruton United v. 391 U. S. which States, lli Paoli v. United given retro was De spective said, persuasive, effect. “The We element of reliance is not for Delli Paoli has been under attack from it's many inception rejected Russell, Roberts courts have fact it.” 392 U. S. tional subsidies. The happenstance of litigation is no criterion for dispensing these unconstitutional subsidies. No matter the used for words the apologia, subsidy today given to sectarian schools taxpayers’ out of monies exceeds far the pence” “three which Madison con- demned his Remonstrance.
I would reverse the judgment below and adhere to the constitutional principle announced in Lemon I.