ROEMER ET AL. v. BOARD OF PUBLIC WORKS OF MARYLAND ET AL.
No. 74-730
Supreme Court of the United States
Argued February 23, 1976—Decided June 21, 1976
426 U.S. 736
George A. Nilson, Assistant Attorney General of Maryland, and Paul R. Connolly argued the cause for appellees. With Mr. Nilson on the brief for appellees Board of Public Works of Maryland et al. were Francis B. Burch, Attorney General, and Henry R. Lord, Deputy Attorney General. With Mr. Connolly on the brief for appellees Loyola College et al. were Charles H. Wilson and John C. Evelius. George W. Constable filed a brief for appellee College of Notre Dame of Maryland, Inc. George T. Tyler and Robert V. Barton, Jr., filed a brief for appellee St. Joseph College at Emmitsburg, Maryland, Inc.*
MR. JUSTICE BLACKMUN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and MR. JUSTICE POWELL joined.
We are asked once again to police the constitutional boundary between church and state. Maryland, this time, is the alleged trespasser. It has enacted a statute which, as amended, provides for annual noncategorical grants to private colleges, among them religiously affiliated institutions, subject only to the restrictions that the funds not be used for “sectarian purposes.” A three-judge District Court, by a divided vote, refused to enjoin the operation of the statute, 387 F. Supp. 1282 (Md. 1974), and a direct appeal has been taken to this Court pursuant to
*Leo Pfeffer filed a brief for the National Coalition for Public Education and Religious Liberty as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Solicitor General Bork, Assistant Attorney General Lee, and Thomas G. Wilson for the United States, and by Charles M. Whelan for the Association of American Colleges et al.
The challenged grant program was instituted by Laws of 1971, c. 626, and is now embodied in
“None of the moneys payable under this subtitle
shall be utilized by the institutions for sectarian purposes.”
The administration of the grant program is entrusted to the State‘s Board of Public Works “assisted by the Maryland Council for Higher Education.” These bodies are to adopt “criteria and procedures . . . for the implementation and administration of the aid program.” They are specifically authorized to adopt “criteria and procedures” governing the method of application for grants and of their disbursement, the verification of degrees conferred, and the “submission of reports or data concerning the utilization of these moneys by [the aided] institutions.”
The Council performs what the District Court described as a “two-step screening process” to insure compliance with the statutory restrictions on the grants. First, it determines whether an institution applying for aid is eligible at all, or is one “awarding primarily theo
use that may arise is to be resolved by the Council, if possible, on the basis of information submitted to it by the institution and without actual examination of its books. Failing that, a “verification or audit” may be undertaken. The District Court found that the audit would be “quick and non-judgmental,” taking one day or less. Id., at 1296.5
subject to § 68A and to the Council‘s procedures for insuring compliance therewith.
After carefully assessing the role that the Catholic Church plays in the lives of these institutions, a matter to which we return in greater detail below, and applying
II
A system of government that makes itself felt as pervasively as ours could hardly be expected never to cross paths with the church. In fact, our State and Federal Governments impose certain burdens upon, and impart certain benefits to, virtually all our activities, and religious activity is not an exception. The Court has enforced a scrupulous neutrality by the State, as
And religious institutions need not be quarantined from public benefits that are neutrally available to all. The Court has permitted the State to supply transportation for children to and from church-related as well as public schools. Everson v. Board of Education, 330 U. S. 1 (1947). It has done the same with respect to secular textbooks loaned by the State on equal terms to students attending both public and church-related elementary schools. Board of Education v. Allen, 392 U. S. 236 (1968). Since it had not been shown in Allen that the secular textbooks would be put to other than secular purposes, the Court concluded that, as in Everson, the State was merely “extending the benefits of state laws to all citizens.” Id., at 242. Just as Bradfield dispels any notion that a religious person can never be in the State‘s pay for a secular purpose,13
Neutrality is what is required. The State must confine itself to secular objectives, and neither advance nor impede religious activity. Of course, that principle is more easily stated than applied. The Court has taken the view that a secular purpose and a facial neutrality may not be enough, if in fact the State is lending direct support to a religious activity. The State may not, for example, pay for what is actually a religious education, even though it purports to be paying for a secular one, and even though it makes its aid available to secular and religious institutions alike. The Court also has taken the view that the State‘s efforts to perform a secular task, and at the same time avoid aiding in the performance of a religious one, may not lead it into such an intimate relationship with religious authority that it appears either to be sponsoring or to be exces-
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . ; finally, the statute must not foster ‘an excessive government entanglement with religion.‘” 403 U. S., at 612-613.
At issue in Lemon I were two state-aid plans, a Rhode Island program to grant a 15% supplement to the salaries of private, church-related school teachers teaching secular courses, and a Pennsylvania program to reimburse private church-related schools for the entire cost of secular courses also offered in public schools. Both failed the third part of the test, that of “excessive government entanglement.” This part the Court held in turn required a consideration of three factors: (1) the character and purposes of the benefited institutions, (2) the nature of the aid provided, and (3) the resulting relationship between the State and the religious authority. Id., at 615. As to the first of these, in reviewing the Rhode Island program, the Court found that the aided schools, elementary and secondary, were characterized by “substantial religious activity and purpose.” Id., at 616. They were located near parish churches. Religious instruction was considered “part of the total
The Court also pointed to another kind of church-state entanglement threatened by the Rhode Island and Pennsylvania programs, namely, their “divisive political potential.” Id., at 622. They represented “successive and very likely permanent annual appropriations that benefit relatively few religious groups.” Id., at 623. Political factions, supporting and opposing the programs, were bound to divide along religious lines. This was “one of the principal evils against which the First Amendment was intended to protect.” Id., at 622. It was stressed that the political divisiveness of the programs was “aggravated . . . by the need for continuing annual appropriations.” Id., at 623.16
392 U. S., at 249 (Harlan, J., concurring); Abington School Dist. v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring).
Turning to the problem of excessive entanglement, the Court first stressed the character of the aided institutions. It pointed to several general differences between college and precollege education: College students are less susceptible to religious indoctrination; college courses tend to entail an internal discipline that inherently limits the opportunities for sectarian influence; and a high degree of academic freedom tends to prevail at the college level. It found no evidence that the col-
As for political divisiveness, no “continuing religious aggravation” over the program had been shown, and the Court reasoned that this might be because of the lack of continuity in the church-state relationship, the character and diversity of the colleges, and the fact that they served a dispersed student constituency rather than a local one. “[C]umulatively,” all these considerations persuaded the Court that church-state entanglement was not excessive. 403 U. S., at 684-689.
In Hunt v. McNair, 413 U. S. 734 (1973), the challenged aid was also for the construction of secular college facilities, the state plan being one to finance the construction by revenue bonds issued through the medium of a state authority. In effect, the college serviced and repaid the bonds, but at the lower cost resulting from the tax-free status of the interest payments. The Court upheld the program on reasoning analogous to that in
“Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” 413 U. S., at 743.
Although the college which Hunt concerned was subject to substantial control by its sponsoring Baptist Church, it was found to be similar to the colleges in Tilton and not “pervasively sectarian.” As in Tilton, state aid went to secular facilities only, and thus not to any “specifically religious activity.” 413 U. S., at 743-745.
Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), followed in Lemon I‘s wake much as Hunt followed in Tilton‘s. The aid in Nyquist was to elementary and secondary schools which, the District Court found, generally conformed to a “profile” of a sectarian or substantially religious school.18 The state aid took three forms: direct subsidies for the maintenance and repair of buildings; reimbursement of parents for a percentage of tuition paid; and certain tax benefits for parents. All three forms of aid were found to have an impermissible primary effect. The mainte-
In Levitt v. Committee for Public Education, 413 U. S. 472 (1973), the Court also invalidated a program for public aid to church-affiliated schools. The grants, which were to elementary and secondary schools in New York, were in the form of reimbursements for the schools’ testing and recordkeeping expenses. The schools met the same sectarian profile as did those in Nyquist, at least in some cases. There was therefore “substantial risk” that the state-funded tests would be “drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church.” 413 U. S., at 480.
Last Term, in Meek v. Pittenger, 421 U. S. 349 (1975), the Court ruled yet again on a state-aid program for church-related elementary and secondary schools. On the authority of Allen, it upheld a Pennsylvania program for lending textbooks to private school students. It found, however, that Lemon I required the invalidation of two other forms of aid to the private schools. The first was the loan of instructional materials and equipment. Like the textbooks, these were secular and nonideological in nature. Unlike the textbooks, however, they were loaned directly to the schools. The schools, similar to those in Lemon I, were ones in which “the teaching process is, to a large extent, devoted to the inculcation of religious values and belief.” 421 U. S., at 366. Aid flowing directly to such “religion-pervasive institutions,” ibid., had the primary effect of advancing religion. See Hunt v. McNair, supra. The other form of aid was the provision of “auxiliary” educational serv-
So the slate we write on is anything but clean. Instead, there is little room for further refinement of the principles governing public aid to church-affiliated private schools. Our purpose is not to unsettle those principles, so recently reaffirmed, see Meek v. Pittenger, supra, or to expand upon them substantially, but merely to insure that they are faithfully applied in this case.
III
The first part of Lemon I‘s three-part test is not in issue; appellants do not challenge the District Court‘s finding that the purpose of Maryland‘s aid program is the secular one of supporting private higher education generally, as an economic alternative to a wholly public system.19 The focus of the debate is on the second and third parts, those concerning the primary effect of ad-
A
While entanglement is essentially a procedural problem, the primary-effect question is the substantive one of what private educational activities, by whatever procedure, may be supported by state funds. Hunt requires (1) that no state aid at all go to institutions that are so “pervasively sectarian” that secular activities cannot be separated from sectarian ones, and (2) that if secular activities can be separated out, they alone may be funded.
(1) The District Court‘s finding in this case was that the appellee colleges are not “pervasively sectarian.” 387 F. Supp., at 1293. This conclusion it supported with a number of subsidiary findings concerning the role of religion on these campuses:
(a) Despite their formal affiliation with the Roman Catholic Church, the colleges are “characterized by a high degree of institutional autonomy.” Id., at 1287 n. 7. None of the four receives funds from, or makes reports to, the Catholic Church. The Church is represented on their governing boards, but, as with Mount Saint Mary‘s, “no instance of entry of Church considerations into college decisions was shown.” Id., at 1295.
(b) The colleges employ Roman Catholic chaplains and hold Roman Catholic religious exercises on campus. Attendance at such is not required; the encouragement of spiritual development is only “one secondary objective” of each college; and “at none of these institutions does this encouragement go beyond providing the opportunities or occasions for religious experience.” Ibid. It was the District Court‘s general finding that “religious indoctrination is not a substantial purpose or activity of any of these defendants.” Id., at 1296.
(d) Some classes are begun with prayer. The percentage of classes in which this is done varies with the college, from a “minuscule” percentage at Loyola and Mount Saint Mary‘s, to a majority at Saint Joseph. Id., at 1293. There is no “actual college policy” of encouraging the practice. “It is treated as a facet of the instructor‘s academic freedom.” Ibid. Classroom prayers were therefore regarded by the District Court as “peripheral to the subject of religious permeation,” as were the facts that some instructors wear clerical garb and some classrooms have religious symbols. Ibid. The court concluded:
“None of these facts impairs the clear and con
vincing evidence that courses at each defendant are taught ‘according to the academic requirements intrinsic to the subject matter and the individual teacher‘s concept of professional standards.’ [citing Tilton v. Richardson, 403 U. S., at 681].” Id., at 1293-1294.
In support of this finding the court relied on the fact that a Maryland education department group had monitored the teacher education program at Saint Joseph College, where classroom prayer is most prevalent, and had seen “no evidence of religion entering into any elements of that program.” Id., at 1293.
(e) The District Court found that, apart from the theology departments, see n. 20, supra, faculty hiring decisions are not made on a religious basis. At two of the colleges, Notre Dame and Mount Saint Mary‘s, no inquiry at all is made into an applicant‘s religion. Religious preference is to be noted on Loyola‘s application form, but the purpose is to allow full appreciation of the applicant‘s background. Loyola also attempts to employ each year two members of a particular religious order which once staffed a college recently merged into Loyola. Budgetary considerations lead the colleges generally to favor members of religious orders, who often receive less than full salary. Still, the District Court found that “academic quality” was the principal hiring criterion, and that any “hiring bias,” or “effort by any defendant to stack its faculty with members of a particular religious group,” would have been noticed by other faculty members, who had never been heard to complain. Id., at 1294.
(f) The great majority of students at each of the colleges are Roman Catholic, but the District Court concluded from a “thorough analysis of the student ad
We cannot say that the foregoing findings as to the role of religion in particular aspects of the colleges are clearly erroneous. Appellants ask us to set those findings aside in certain respects. Not surprisingly, they have gleaned from this record of thousands of pages, compiled during several weeks of trial, occasional evidence of a more sectarian character than the District Court ascribes to the colleges. It is not our place, however, to reappraise the evidence, unless it plainly fails to support the findings of the trier of facts. That is certainly not the case here, and it would make no difference even if we were to second-guess the District Court in certain particulars. To answer the question whether an institution is so “pervasively sectarian” that it may receive no direct state aid of any kind, it is necessary to paint a general picture of the institution, composed of many elements. The general picture that the District Court has painted of the appellee institutions is similar in almost all respects to that of the church-affiliated colleges considered in Tilton and Hunt.21 We
(2) Having found that the appellee institutions are not “so permeated by religion that the secular side cannot be separated from the sectarian,” 387 F. Supp., at 1293, the District Court proceeded to the next question posed by Hunt: whether aid in fact was extended only to “the secular side.” This requirement the court regarded as satisfied by the statutory prohibition against sectarian use, and by the administrative enforcement of that prohibition through the Council for Higher Education. We agree. Hunt requires only that state funds not be used to support “specifically religious activity.” It is clear that fund uses exist that meet this require
Should such questions arise, the courts will consider them. It has not been the Court‘s practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds. See, e. g., Hunt v. McNair, 413 U. S., at 744; Tilton v. Richardson, 403 U. S., at 682 (plurality opinion).
B
If the foregoing answer to the “primary effect” ques
(1) First is the character of the aided institutions. This has been fully described above. As the District Court found, the colleges perform “essentially secular educational functions,” 387 F. Supp., at 1288, that are distinct and separable from religious activity. This finding, which is a prerequisite under the “pervasive sectarianism” test to any state aid at all, is also important for purposes of the entanglement test because it means that secular activities, for the most part, can be taken at face value. There is no danger, or at least only a substantially reduced danger, that an ostensibly secular activity—the study of biology, the learning of a foreign language, an athletic event—will actually be infused with religious content or significance. The need for close surveillance of purportedly secular activities is correspondingly reduced. Thus the District Court found that in this case “there is no necessity for state officials to investigate the conduct of particular classes of educational programs to determine whether a school is attempting to indoctrinate its students under the guise of secular education.” Id., at 1289. We cannot say the District Court erred in this judgment or gave it undue significance. The Court took precisely the same view with respect to the aid extended to the very similar institutions in Tilton, 403 U. S., at 687 (plurality opinion). See also Hunt v. McNair, supra, at 746.
(3) As noted, the funding process is an annual one. The subsidies are paid out each year, and they can be put to annually varying uses. The colleges propose particular uses for the Council‘s approval, and, following expenditure, they report to the Council on the use to which the funds have been put.
The District Court‘s view was that in light of the character of the aided institutions, and the resulting absence of any need “to investigate the conduct of particular classes,” 387 F. Supp., at 1289, the annual nature of the subsidy was not fatal. In fact, an annual, ongoing relationship had existed in Tilton, where the Government retained the right to inspect subsidized buildings for sectarian use, and the ongoing church-state involvement had been even greater in Hunt, where the State was actually the lessor of the subsidized facilities, retaining extensive powers to regulate their use. See 387 F. Supp., at 1290.
We agree with the District Court that “excessive entanglement” does not necessarily result from the fact that the subsidy is an annual one. It is true that the Court favored the “one-time, single-purpose” construction grants in Tilton because they entailed “no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution‘s expenditures.” 403 U. S., at 688 (plurality opinion). The present aid program cannot claim these aspects. But if the question is whether this case is more like Lemon I or more like Tilton—and surely that is the
Tilton is distinguishable only by the form of aid. We cannot discount the distinction entirely, but neither can we regard it as decisive. As the District Court pointed out, ongoing, annual supervision of college facilities was explicitly foreseen in Tilton, 403 U. S., at 675; see also Lemon I, 403 U. S., at 669 (opinion of WHITE, J.), and even more so in Hunt, 413 U. S., at 739-740, 745-749. Tilton and Hunt would be totally indistinguishable, at least in terms of annual supervision, if funds were used under the present statute to build or maintain physical facilities devoted to secular use. The present statute contemplates annual decisions by the Council as to what is a “sectarian purpose,” but, as we have noted, the secular and sectarian activities of the colleges are easily separated. Occasional audits are possible here, but we must accept the District Court‘s finding that they would be “quick and non-judgmental.” 387 F. Supp., at 1296. They and the other contacts between the Council and the colleges are not likely to be any more entangling than the inspections and audits incident to the normal process of the colleges’ accreditations by the State.
While the form-of-aid distinctions of Tilton are thus of questionable importance, the character-of-institution distinctions of Lemon I are most impressive. To reiterate a few of the relevant points: The elementary and secondary schooling in Lemon I came at an impressionable age; the aided schools were “under the general supervision” of the Roman Catholic diocese; each school had a local Catholic parish that assumed “ultimate financial responsibility” for it; the principals of the schools were usually appointed by church authorities; religion “pervade[d] the school system“; teachers were specifically instructed by the “Handbook of School Regula
(4) As for political divisiveness, the District Court recognized that the annual nature of the subsidy, along with its promise of an increasing demand for state funds as the colleges’ dependency grew, aggravated the danger of “[p]olitical fragmentation ... on religious lines.” Lemon I, 403 U. S., at 623. Nonetheless, the District Court found that the program “does not create a substantial danger of political entanglement.” 387 F. Supp., at 1291. Several reasons were given. As was stated in Tilton, the danger of political divisiveness is “substantially less” when the aided institution is not an elementary or secondary school, but a college, “whose student constituency is not local but diverse and widely dispersed.” 403 U. S., at 688-689. Furthermore, political divisiveness is diminished by the fact that the aid is extended to private colleges generally, more than two-thirds of which have no religious affiliation; this is in sharp contrast to Nyquist, for example, where 95% of the aided schools were Roman Catholic parochial schools. Finally, the substantial autonomy of the colleges was thought to mitigate political divisiveness, in that controversies surrounding the aid program are not likely to involve the Catholic Church itself, or even the religious character of the schools, but only their “fiscal responsi
The District Court‘s reasoning seems to us entirely sound. Once again, appellants urge that this case is controlled by previous cases in which the form of aid was similar (Lemon I, Nyquist, Levitt), rather than those in which the character of the aided institution was the same (Tilton, Hunt). We disagree. Though indisputably relevant, see Lemon I, 403 U. S., at 623-624, the annual nature of the aid cannot be dispositive. On the one hand, the Court has struck down a “permanent,” nonannual tax exemption, reasoning that “the pressure for frequent enlargement of the relief is predictable,” as it always is. Committee for Public Education v. Nyquist, 413 U. S., at 797. On the other hand, in Tilton it has upheld a program for “one-time, single-purpose” construction grants, despite the fact that such grants would, in fact, be “annual,” at least insofar as new grants would be annually applied for. 403 U. S., at 688. See Lemon I, 403 U. S., at 669 (opinion of WHITE, J.). Our holdings are better reconciled in terms of the character of the aided institutions, found to be so dissimilar as between those considered in Tilton and Hunt, on the one hand, and those considered in Lemon I, Nyquist, and Levitt, on the other.
There is no exact science in gauging the entanglement of church and state. The wording of the test, which speaks of “excessive entanglement,” itself makes that clear. The relevant factors we have identified are to be considered “cumulatively” in judging the degree of entanglement. Tilton v. Richardson, 403 U. S., at 688. They may cut different ways, as certainly they do here. In reaching the conclusion that it did, the District Court gave dominant importance to the character of the aided institutions and to its finding that they are capable of separating secular and religious functions. For the rea
The judgment of the District Court is affirmed.
It is so ordered.
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, concurring in the judgment.
While I join in the judgment of the Court, I am unable to concur in the plurality opinion substantially for the reasons set forth in my opinions in Lemon v. Kurtzman, 403 U. S. 602 (1971) (Lemon I), and Committee for Public Education v. Nyquist, 413 U. S. 756 (1973). I am no more reconciled now to Lemon I than I was when it was decided. See Nyquist, supra, at 820 (WHITE, J., dissenting). The threefold test of Lemon I imposes unnecessary, and, as I believe today‘s plurality opinion demonstrates, superfluous tests for establishing “when the State‘s involvement with religion passes the peril point” for
“It is enough for me that the [State is] financing a separable secular function of overriding importance in order to sustain the legislation here challenged.” Lemon I, supra, at 664 (opinion of WHITE, J.). As long as there is a secular legislative purpose, and as long as the primary effect of the legislation is neither to advance nor inhibit religion, I see no reason—particularly in light of the “sparse language of the Establishment Clause,” Committee for Public Education v. Nyquist, supra, at 820—to take the constitutional inquiry further. See Lemon I, supra, at 661 (opinion of WHITE, J.); Nyquist, supra, at 813 (WHITE, J., dissenting). However, since 1970, the Court has added a third element to the inquiry: whether there is “an excessive government entanglement with religion.” Walz v. Tax Comm‘n, 397 U. S. 664, 674 (1970). I have never understood the constitutional foundation for this added element; it is at once both insolubly paradoxical, see Lemon I, supra, at
I see no reason to indulge in the redundant exercise of evaluating the same facts and findings under a different label. No one in this case challenges the District
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.
I agree with Judge Bryan, dissenting from the judgment under review, that the Maryland Act “in these instances does in truth offend the Constitution by its provisions of funds, in that it exposes State money for use in advancing religion, no matter the vigilance to avoid it.” 387 F. Supp. 1282, 1298 (1974) (emphasis in original). Each of the institutions is a church-affiliated or church-related body. The subsidiary findings concerning the role of religion on each of the campuses, summarized by the plurality opinion, ante, at 755-758, conclusively establish that fact. In that circumstance, I agree with Judge Bryan that “[o]f telling decisiveness here is the payment of the grants directly to the colleges unmarked in purpose.... Presently the Act is simply a blunderbuss discharge of public funds to a church-affiliated or church-related college.” 387 F. Supp., at 1298-1299. In other words, the Act provides for payment of general subsidies to religious institutions from public funds and I have heretofore expressed my view that “[g]eneral subsidies of religious activities would, of course, constitute impermissible state involvement with religion.” Walz v. Tax Comm‘n, 397 U. S. 664, 690 (1970) (concurring opinion). This is because general subsidies “tend to promote that type of interdependence between religion and state which the
The history of the bitter controversies over public subsidy of sectarian educational institutions that began soon after the Nation was formed is recited in my separate opinion in Lemon v. Kurtzman, 403 U. S. 602, 642 (1971) (Lemon I). My reasons for concluding in Lemon I that all three statutes there before us impermissibly provided a direct subsidy from public funds for activities carried on by sectarian educational institutions also support my agreement with Judge Bryan in this case that “an injunction should issue as prayed in the complaint, stopping future payments under the Maryland Act to the [appellee] colleges.” 387 F. Supp., at 1300. I said in Lemon I, supra, at 659-660:
“I believe that the Establishment Clause forbids ... Government to provide funds to sectarian universities in which the propagation and advancement of a particular religion are a function or purpose of the institution. . . .
“I reach this conclusion for [these] reasons . . . : the necessarily deep involvement of government in the religious activities of such an institution through the policing of restrictions, and the fact that subsidies of tax monies directly to a sectarian institution necessarily aid the proselytizing function of the institution. . . .
“. . . I do not believe that [direct] grants to such a sectarian institution are permissible. The reason is not that religion ‘permeates’ the secular education that is provided. Rather, it is that the secular edu
cation is provided within the environment of religion; the institution is dedicated to two goals, secular education and religious instruction. When aid flows directly to the institution, both functions benefit.” (Emphasis in original.)
The discrete interests of government and religion are mutually best served when each avoids too close a proximity to the other. “It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.” Abington School Dist. v. Schempp, supra, at 259 (BRENNAN, J., concurring). The Maryland Act requires “too close a proximity” of government to the subsidized sectarian institutions and in my view creates real dangers of the “secularization of a creed.” Ibid.; Lemon I, supra, at 649 (opinion of BRENNAN, J.).
Unlike Judge Bryan, 387 F. Supp., at 1300, I would also reverse the District Court‘s denial of appellants’ motion that the appellee institutions be required to refund all payments made to them. I adhere to the views expressed in Mr. Justice Douglas’ dissent, which I joined, in Lemon v. Kurtzman, 411 U. S. 192, 209 (1973) (Lemon II):
“There is as much a violation of the Establishment Clause of the
First Amendment whether the payment from public funds to sectarian schools involves last year, the current year, or next year. . . .“Whether the grant is for . . . last year or at the present time, taxpayers are forced to contribute to sectarian schools a part of their tax dollars.”
I would reverse the judgment of the District Court and remand with directions to enter a new judgment per
MR. JUSTICE STEWART, dissenting.
In my view, the decisive differences between this case and Tilton v. Richardson, 403 U. S. 672, lie in the nature of the theology courses that are a compulsory part of the curriculum at each of the appellee institutions and the type of governmental assistance provided to these church-affiliated colleges. In Tilton the Court emphasized that the theology courses were taught as academic subjects.
“Although all four schools require their students to take theology courses, the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher‘s concept of professional standards. The parties also stipulated that the courses covered a range of human religious experiences and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart are taught by rabbis.” Id., at 686-687.
Here, by contrast, the District Court was unable to find that the compulsory religion courses were taught as an academic discipline.
“[T]he hiring patterns for religion or theology departments are a special case and present a unique problem. All five defendants staff their religion or theology departments chiefly with clerics of the affiliated church. At two defendants, Western
Maryland and Mt. St. Mary‘s, all members of the religion or theology faculty are clerics. The problem presented by the make-up of these departments is obvious. Recognition of the academic freedom of these instructors does not necessarily lead to a conclusion that courses in the religion or theology departments at the five defendants have no overtones of indoctrination. “The theology and religion courses of each defendant must be viewed in the light of that shared objective [of encouraging spiritual development of the students]. While most of the defendants do not offer majors in religion or theology, each maintains a vigorous religion or theology department. The primary concern of these departments, either admittedly or by the obvious thrust of the courses, is Christianity. As already noted, the departments are staffed almost entirely with clergy of the affiliated church. At each of the defendants, certain of these courses are required.
“. . . [A] department staffed mainly by clerics of the affiliated church and geared toward a limited array of the possible theology or religion courses affords a congenial means of furthering the secondary objective of fostering religious experience.” 387 F. Supp. 1282, 1294-1296 (emphasis in original).
In light of these findings, I cannot agree with the plurality‘s assertion that there is “no constitutionally significant distinction” between the colleges in Tilton and those in the present case. Ante, at 759. The findings in Tilton clearly established that the federal building-construction grants benefited academic institutions that made no attempt to inculcate the religious beliefs of the affiliated church. In the present case, by contrast,
For the reasons stated, and those expressed by MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS, I dissent from the judgment of the Court and the plurality‘s opinion.
MR. JUSTICE STEVENS, dissenting.
My views are substantially those expressed by MR. JUSTICE BRENNAN. However, I would add emphasis to the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it. The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith.
Notes
“All four schools are governed by Catholic religious organizations, and the faculties and student bodies at each are predominantly Catholic. Nevertheless, the evidence shows that non-Catholics were admitted as students and given faculty appointments. Not one of these four institutions requires its students to attend religious services. Although all four schools require their students to take theology courses, the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher‘s concept of professional standards. The parties also stipulated that the courses covered a range of human religious experiences and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart are taught by rabbis. Finally, as we have noted, these four schools subscribe to a well-established set of principles of academic freedom, and nothing in this record shows that these principles are not in fact followed. In short, the evidence shows institutions with admittedly religious functions but whose predominant higher education mission is to provide their students with a secular education.” 403 U. S., at 686-687.
To be sure, in this case the District Court was unable to find, as was stipulated in Tilton, that mandatory theology or religion courses are taught without taint of religious indoctrination. See n. 20, supra. This is not inconsistent, however, with the District Court‘s finding of a lack of pervasive sectarianism. The latter condition would exist only if, because of the institution‘s general character, courses other than religion or theology courses could not be funded without fear of religious indoctrination.
The role of the affiliated church appears, if anything, to have been stronger in Hunt than in this case. The Baptist College at Charleston, before us in Hunt, was controlled by the South Carolina Baptist Convention to the extent that the Convention elected all members of the Board of Trustees, and retained the power to approve certain financial transactions, as well as any amendment of the College‘s charter. 413 U. S., at 743.
“A.
Art. 77A, § 68A, Annotated Code of Maryland , prohibits recipient institutions from using State funds for ‘sectarian purposes.’ That provision generally proscribes the use of State funds to support religious instruction, religious worship, or other activities of a religious nature. Listed below are several potential uses of State funds which would violate the sectarian use prohibition. The list is not intended to be all-inclusive and, if an institution is in doubt whether any other possible use of the funds might violate the sectarian use prohibition, it should consult with and seek the advice of the Council in advance. “(1) Student Aid: State funds may not be used for student aid if the institution imposes religious restrictions or qualifications on eligibility for student aid, nor may they be paid to students then enrolled in a religious, seminarian, or theological academic program.
“(2) Salaries: State funds may not be used to pay in whole or in part the salary of any person who is engaged in the teaching of religion or theology, who serves as chaplain or director of the campus ministry, or who administers or supervises any program of religious activities.
“(3) Maintenance and Repair: State funds may not be used to pay any portion of the cost of maintenance or repair of any building or facility used for the teaching of religion or theology or for religious worship or for any religious activity.
“(4) Utilities: If an institution has any building or facility that is used in whole or in part for the teaching of religion or theology or for religious worship or for any religious activity, State funds may not be used to pay utilities bills unless those buildings or facilities are separately metered. If buildings or facilities used for any religious purpose described in the preceding sentence are separately metered, the cost of providing heat, electricity, and water to those buildings or facilities cannot be paid with State funds.
“(5) Capital Construction and Improvements: If State funds are used to construct a new building or facility or to renovate an existing one, the building or facility may not be used for the teaching of religion or theology or for religious worship or for any religious activity at any time in the future.” Regulation 01.03.06A. See n. 4, supra.
In any event, the District Court‘s ruling with respect to the 1971 payments was clearly in keeping with Lemon II. In that case, this Court identified two considerations primarily relevant to the question of retroactive remedy: (1) the reasonableness and degree of reliance by the institutions on the payments, and (2) the necessity of refunds to protect the substantive constitutional rights involved. Reliance was, if anything, less reasonable in Lemon II, where at least a suit had been filed prior to the time the reliance occurred. The degree of reliance was also, if anything, less in Lemon II. There the colleges had not yet received the funds in question, but had simply incurred expenses in expectation of receiving them. The funds in question here long since have been paid out to, and spent by, the colleges. As for the protection of substantive constitutional rights, the separation of church and state may well be better served by not putting the State of Maryland in the position of a judgment creditor of the appellee colleges. Cf. Walz v. Tax Comm‘n, 397 U. S., at 674.