*1 RICHARDSON, SECRETARY al. v. TILTON et EDUCATION, AND HEALTH, OF WELFARE, et al. 2-3, June Argued March 1971 Decided 153. No. *2 an delivered judgment and J., Court’s announced C. Burger, JJ., joined. Blackmun, Stewart, and Harlan, in which opinion ante, "p. judgment, in the concurring op J., lion an White, filed in which dissenting part, opinion J., filed an Douglas, 661. J., Brennan, 689. post, JJ., joined, Marshall, p. and Black ante, p. 642. opinion, dissenting filed a Leo argued appellants. the cause for himWith Pfeffer on Costas, the briefs were Peter Orth, L. Paul W. Jerry Wagner.
Daniel M. Friedman argued cause for appellees Richardson et al. On the brief were Solicitor General Griswold, Assistant Attorney Ruckelshaus, General Zener, Robert V. and Donald L. Horowitz. F. Michael Ahern, Attorney Assistant General of Connecticut, argued the cause for appellee Peterson. With him on the brief Killian, was Robert K. Attorney Ed- General. ward Bennett Williams argued the for appellee cause col- leges and universities. With him on the brief were Jeremiah Collins, C. Howard Owens, T. Lawrence W. Iannotti, and Bruce Lewellyn.
Briefs of amici curiae urging reversal were filed Franklin C. Salisbury for Protestants and Other Ameri- cans United for Separation of Church State, Peter L. Costas and Paul W. Orth for the Connecticut *3 State Conference of Branches of the NAACP et al.
Briefs of amici curiae urging affirmance were filed Wilber G. Katz and John Myers Holt for the American Council on Education et al., and Nathan Lewin for the National Jewish Commission on Law and Public Affairs. Burger
Mb. Chief announced the judgment Justice of the Court and an opinion in which Mr. Justice Har- lan, Mr. Justice Stewart, and Mr. Justice Blackmun join. presents appeal important
This ques constitutional tions as to federal aid for church-related colleges and universities under I Title of the Higher Education Facili ties Act of 1963, 77 Stat. amended, 20 U. S. C. 711-721 (1964 §§ ed. and Supp. V), which provides construction grants for buildings and facilities used must educational, We purposes. exclusively for secular whether, to aid such authorizes the Act first determine Act the whether so, if institutions, and, church-related Clauses or Free Exercise Establishment either violates Amendment. First of the
I passed Act Facilities Education Higher The for the demand nationwide strong a response to meet to university facilities college of expansion demanding people young number rising sharply grants federal Act authorizes The education. higher for the education” higher “institutions to loans facilities.” “academic variety of wide of a construction excludes expressly V) Supp. ed., (1964 (a)(2) 751§But in- for. sectarian used be used or facility “any . . . or worship, for place or as struction pri- used or to used ... facility any which program any part with marily in connection divinity . . .” . department of school of a Com- States by the United is administered The Act univer- colleges He advises Education. missioner of part noAct that under funds for applying sities instruction, religious used sectarian may be project The Com- divinity school. programs worship, or assurances provide applicants requires missioner United States respected. will be restrictions facility constructed interest 20-year retains recipient vio- period, If, during I funds. Title is entitled United States conditions, statutory lates pres- itsof proportion to the equal amount recover an original cost bore to the. grant federal *4 ent value that statutory 20-year period, facility. During the of the pri- of Education Office by the enforced are restrictions inspections. of on-site way by marily of the United taxpayers citizens and Appellants are They brought of Connecticut. and residents States who admin- officials injunctive against suit for relief univer- colleges ister the Act. Four church-related grants federal construction receiving sities in Connecticut Federal defendants. under Title I were named as also institu- four projects funds were used for five at these University; library Heart (1) building a at Sacred tions: Annhurst Col- building at (2) music, drama, and arts (4) a University; science at Fairfield lege; (3) building labora- library Fairfield; (5) language building at tory Albertus Magnus College. at under 28
A court convened three-judge federal attempted to Appellants, U. C. 2282 and 2284. § § S. show four were “sectarian” recipient that the institutions religious relations with introducing evidence their authorities, in- curricula, content of their and other dicia of their sponsorship character. these institutions dis- religious organizations is not puted. Appellee testimony introduced that colleges fully complied had statutory with the conditions and their way affiliation no interfered with performance of their secular educational functions. The District Court ruled Title I grants authorized to church-related colleges and universities. It also sus- constitutionality tained the Act, it' finding had purpose neither nor the effect of promoting ‘ religion. 312 Supp. probable 1191. We juris- noted F. (1970). diction. 399 U. S.
II We are satisfied that Congress intended the Act to include all colleges and universities regardless affiliation with or sponsorship by body. a religious Con- defined gress “institutions of higher education,” which eligible to receive Act, aid under the in broad and
677 insti- example, for institutions, Certain terms. inclusive ex- are nonprofit, nor public neither are tutions of use prohibits expressly Act the excluded, and pressly makes Act the But purposes. religious the facilities or nonaffiliation. affiliation religious to no reference educa- higher of “institutions circumstances these Under colleges church-related include to taken must be tion” and universities. legislative by the supported fully is interpretation
This on the debate extensive there Although history. affili to institutions constitutionality of aid wisdom in clearly Congress organizations, with ated Act the sponsors program. in them cluded of Sen. (remarks (1963) 19218 Rec. Cong. 109 stated, so id., at Powell); Rep.- id., (remarks 14954 at Morse); aimed and amendments Quie), Rep. (remarks de were institutions church-related exclusion at the 19496. Id., at 14990-14992, feated.
Ill noted have Court by considered cases Numerous between Amendment First tension internal Clause. Free Exercise and the Clause Establishment is the (1970), Comm’n, U. S. Tax v. Walz boundaries seeking to define decision recent most within provisions two these between neutral area of the inas There, act. may legitimately legislature which the main con the three treated the Court decisions, other sought Establishment Clause which against cerns active support, financial “sponsorship, protect: Id., activity.” sovereign involvement at 668. acknowl- candid with the begin analysis must
Every caliper constitutional single no there edgment which degree precise measure used can our Instead, or absent. present are factors three analysis in area .this must begin a consideration of the cumulative developed many years criteria over and applying to a wide range of governmental action challenged as violative of the Establishment Clause. .
There always risks in treating criteria discussed by the Court from time to time as “tests” limit- ing sense of that term. adjudication Constitutional does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify in which instances *6 objectives of the Religion Clauses have been im- paired. And, as we have noted in Lemon v. Kurtzman and Earley DiCenso, v. ante, at candor compels the acknowledgment only we can dimly perceive the .permissible boundaries of government in activity sensitive area of adjudication. constitutional
Against this background we questions: consider four First, does the Act reflect a secular legislative purpose? Second, is the primary effect of the Act to advance or inhibit religion? Third, does the administration of the Act fostér an excessive government entanglement religion? Fourth, does implementation of the Act inhibit the free exercise religion? of
(a) The stated legislative purpose appears preamble in the where Congress found and declared that
“the security and welfare of the United re- States quire that this and future generations of American youth be assured ample opportunity for the fullest development of their intellectual capacities, and that this opportunity will be jeopardized unless the Na- colleges tion’s and. universities are encouraged and in assisted their to efforts rapidly accommodate grow- ing youth numbers of who aspire to a higher educa- tion.” 20 U. S. C. § 701.
679 entirely objective secular legitimate a expresses This action. governmental appropriate financial form every argument simplistic Religion activity violates church-sponsored aid Roberts, v. long ago rejected was Clauses Bradfield grant construction There a federal (1899). 291 S.U. upheld. order religious operated hospital ato pri its the ground on challenged isAct Here the church- purposes to aid mary effect is grants Construction universities. colleges related the con the sense that institutions surely aid these their perform them will assist buildings struction textbooks, transportation, bus But functions. various that reli sense gave all aid exemptions and tax find been forced have otherwise would bodies gious Yet these to finance services. which sources from other been have assistance governmental forms of all of Education, U. S. Board Everson v. upheld. Allen, v. 392 U. S. Education (1947); Board of Brad Comm’n, supra. also Tax See Walz v. (1968); not Roberts, supra. question The crucial v. field institution accrues to benefit whether some its but program, whether legislative consequence religion. effect advances primary principal *7 - legiti- that always course, exists, A possibility may be program or legislative law objectives mate There lax enforcement. design or by conscious subverted judicial But argument. new this nothing concern warrant alone, cannot, standing possibilities about unconstitutional. down striking statute carefully that the to ensure itself drafted Act be devoted to would federally subsidized-facilities recipient function of not secular only for grants and loans It authorizes institutions. will used for defined secular that academic facilities prohibits their use for expressly purposes instruction, training, or worship. These restrictions have been enforced the Act’s actual administration, and the record shows that some church-related institutions have been required to disgorge benefits for failure to obey them.
Finally, fully record supports the findings of the District Court that none of the four church-related insti- tutions in this case has violated the statutory restric- tions. The presented institutions evidence that there had been no religious services or worship in the federally financed facilities, that there are no religious symbols or plaques in or on them, and had been used solely for nonreligious purposes. On this record, there- fore, these buildings are indistinguishable from typical state university facility. Appellants presented no evi-. dence to the contrary.
Appellants
rely
instead
on the argument
govern
ment may not subsidize any
activities
an institution
of higher learning that
in some of its programs teaches
religious doctrines. This argument
rests on Everson
where the
stated
majority
that the Establishment Clause
barred any “tax . . . levied to support any religious
..
.
institutions .
.. whatever form they may adopt to teach
or practice religion.” 330
S.,U.
at
In
Allen, however,
16.
it was recognized that
the Court had fashioned criteria
under which an analysis of a statute’s purpose and effect
was determinative as to whether religion was being ad
vanced
government action.
Under this concept appellants’ position depends on the validity of the proposition religion so permeates the secular education provided by church-related colleges and universities that their religious and secular educa- tional functions are in fact inseparable. The argument government that- grants would thus inevitably advance
CD *8 ' n religion It was Congress. of notice escape not did Cong. Rec. debated, thoughtfully carefully and was It also unpersuasive. found 19474-19475, but Court There Alien. Court by this considered elementary parochial religiosity that to assume refused secular thé necessarily permeates secondary schools they provide. that education any such no basis similarly, provides record,
This federally financed five here. Two assumption The District are libraries. case this involved buildings in either been conducted had no classes that Court found imposed were no restrictions that of these facilities they acquired. the books that on by the institutions third build- contrary. The to the no evidence There is Magnus laboratory Albertus Col- at language was a ing facility was used that showed The evidence lege. in mod- pronunciation their solely to students assist peculiarly seem which would use languages foreign ern —a indoctrination. unadaptable unrelated building a science used to build were also Federal grants drama, and arts music, and a University at Fairfield College. Annhurst at building use into the seeps religion
There no evidence stipulated Indeed, parties any of facilities. at these institutions courses in the District Court. in- requirements the academic taught according and the individual teacher’s subject matter trinsic appellants Although concept professional standards. documents stated several institutional introduced on what could taught, certain restrictions that, these were not in showed restrictions other evidence and that schools were characterized fact enforced freedom rather than atmosphere of academic reli- an institutions, for'example, four All indoctrination. gious on Principles the 1940 Aca- subscribe to Statement , demic Freedom and Tenure endorsed by the American
Association University Professors and the Association *9 of American Colleges.
Rather than focus on the four defendant colleges and universities involved case, however, appellants seek to shift our attention to “composite profile” that they have constructed of “typical sectarian” institu- tion higher education. We are told that such a “com- posite” institution imposes religious restrictions on ad- missions, requires attendance at religious activities, compels obedience to the doctrines and dogmas of the faith, requires instruction in theology doctrine, and does everything it can to propagate particular religion. Perhapg some church-related schools fit the pattern that appellants describe. Indeed, some colleges have been declared ineligible for aid the authorities that admin- ister the Act. But appellants do not contend that these four institutions fall within this category. Individual projects can be properly evaluated if and when chal- lenges arise with respect to particular recipients and some evidence is' presented then to show that the institution does in possess fact these characteristics. We cannot, however, strike an Act of down Congress on the basis of a hypothetical “profile.”
(b) Although we reject appellants’ broad constitutional arguments we perceive do aspect an in which the stat ute’s provisions enforcement are inadequate to ensure that impact of the federal aid will not advance re ligion. If a recipient institution violates of statutory restrictions on the use of a federally financed facility, § 754 (b)(2) permits the Government to re cover an amount equal to proportion of the facility’s present value that grant federal bore to its original cost.
683 the Government is available however, remedy, This “within are violated statutory only if the conditions This of construction.” completion twenty years after period “the is termed statute 20-year period finding Congress’ reflects interest” Federal to the United accruing public benefit years “the after facility financed the federally the use of from States” federal the amount in value” or exceed equal “will (a). C. § 20 U. grant. S. institution’s therefore, recipient (b)(2), 754§
Under instruction facility for sectarian not to use the obligation end of expire at the appear worship or would (7) (b) under example, § years. note, We institution, for a applying (1964 V), an (C) ed., Supp. assurances provide only required grant federal instruction used for facility will not be sectarian *10 Fed period the worship “during at least religious 754 of this defined section (as eral interest therein title).” of struc- the religious for use
Limiting prohibition the for facility to use obviously opens the years ture to 20 It cannot period. any the end of that purpose at after has no value structure that a assumed substantial of a valuable the unrestricted-use and hence period of value contribution some effect a property 20-year the did not base body. Congress end contrary If, at the conclusion. provision on into a example, converted years, building is, 20 the interests, promote chapel used otherwise the effect of part will in have grant federal original advancing religion. the Re- trespasses extent therefore on the Act
To recipient of a obligations Clauses. restrictive ligion compatibly with (a) (2) cannot, under 751§ institution Clauses, expire while has sub- Religion building circumstance not us to require value. This does stantial 634 “The cardinal Act, prin
invalidate the- however. entiré ciple statutory construction is to save and not destroy.” Laughlin Corp., v. Jones & Steel 301 NLRB 1, (1937). Champlin Rfg. In Co. v. Commis U. S. sion, 286 210, (1932), U. S. Court noted unconstitutionality
“The part an Act does validity not defeat . . . the of its re- necessarily Unless, provisions. it is evident maining would not have enacted legislature provisions those which are within power, independently its of that not, part may which is the invalid be dropped if fully operative what is left is as a law.” Nor does the express absence of ah provision severability in the Act dictate the demise of entire statute. g., E. United Jackson, States v. U. S. 585 n. (1968). have,
We found nothing the statute or its objectives intimating Congress 20-year considered the pro- vision essential to statutory program as In a whole. view of the broad and important goals that Congress intended this legislation to serve, there is no basis for assuming that the Act would have failed .of passage with- this provision; out nor will its excision impair either the operation or administration of the in any Act significant respect.1
IV We turn to question next of whether excessive en- tanglements characterize the between Relationship gov- ernment church under the Act. Walz v. Tax Comm’n, supra, at 674-676. Our decision *11 today 1We note that the Commissioner of apparently Education includes no time limitation on the assurances applicants required give -respect with to the use of the facilities for sectarian instruc tion or worship. Compare . (B) (3) (C) 3 with part § § P Application of the Form, App. 87. Kurtzman Robinson v. DiCenso has dis- Lemon v. and of con- independent measure applied cussed' and There we stitutionality Religion under the Clauses. between govern- concluded excessive entanglements by Pennsylvania and and were fostered religion ment under which state aid statutory programs Rhode Island elementary secondary provided parochial substantially di- Here, however, schools. three factors the potential danger minish extent the the entanglement.
In DiCenso Court found the parochial the District schools in integral part Rhode Island were “an There, mission of the Catholic Church.” the fully record supported the conclusion that the inculca- tion of religious values was a if not substantial purpose Pennsyl- dominant of the institutions. vania case was decided on and hence we pleadings, accepted as true allegations parochial that the schools in that State shared the same characteristics.
Appellants’ complaint allegations. here contains similar But were denied and there was answers, subject. extensive evidence introduced on the Although respect, District made no to the findings Court religious character of four of higher learn- institutions we ing, required are not to accept allegations as true under circumstances, particularly where, here, appellants do themselves not contend that these four institutions are “sectarian.”
There are significant differences between generally religious aspects of church-related higher institutions of parochial learning elementary and schools.2 secondary The “affirmative if policy” not dominant of the instruc- tion pre-college church schools is “to future assure Freund, Comment, See Schools, Public Aid to Parochial 82 Harv. (1869). L. Rev.
686 of their by having control faith particular
adherents Comm’n, Tax Walz v. early age.” at an education total the contention There substance to supra, at 671.3 and less impressionable less students are college that Common ob- indoctrination.4 susceptible view, and Con- support seem to would servation skepticism of it. The may well have gress entertained an barrier to is not inconsiderable student college tendency congressional to. subvert any attempt or by very Furthermore, their objectives limitations. limit courses tend to nature, college postgraduate opportunities by for sectarian influence virtue their disciplines. Many colleges own internal church-related by are high degree and universities characterized academic freedom and seek to free and critical evoke from responses their students. support
The record would not here conclusion that any of four departed from this general institutions pattern. All four schools are Catholic re- governed ligious organizations, and the faculties and student bodies predominantly at each Nevertheless, Catholic. evidence shows non-Catholics were admitted as stu- faculty dents and given appointments.' Not one of these four requires institutions its students to attend religious Although services. all four require schools their stu- dents to take theology courses, parties stipulated that .these courses are taught according to the academic re- quirements of the subject matter and the con- teacher’s cept professional parties standards. The also stipu- lated that the courses covered a range of human religious g., Fichter,
3 E. J. Parochial Sociological School: A Study 77-108 (1958); Giannella, Religious Liberty, Nonestablishment, and Doc II, Development, pt. trinal The Nonestablishment Principle, 81 Rev. 513, (1968). Harv. L. 4 Giannella, supra, 3, n. at 583.
5 M. Pattillo Mackenzie, & D. Church-Sponsored Higher Educa 96, tion in the United (1966). States experiences and are not limited to courses about religion. Roman Catholic The schools introduced evi- attempt dence no made indoctrinate students proselytize. or to Indeed, required some of the theology Magnus courses at Albertus taught Sacred Heart are Finally, rabbis. as we have noted, these four schools subscribe to a of principles well-established set of aca- demic freedom, and in this record nothing shows that *13 principles are not in In fact followed. short, . evidencé shows with admittedly institutions. religious predominant functions but higher whose education mis- sion is to provide their with a secular students education.
Since religious indoctrination is not “a pur- substantial pose or activity of these church-related colleges and universities, there is less likelihood than primary secondary schools religion that permeate will the area of secular education. This reduces the risk govern- ment will aid in fact support serve to religious activi- ties. Correspondingly, necessity for intensive gov- ernment surveillance is diminished and the resulting entanglements between government and religion lessened. Such inspection may as be necessary to ascertain that the facilities are devoted to secular education is minimal and indeed hardly more than inspections that States impose private all over schools within the reach of com- pulsory education laws.
The entanglement between church and state is also lessened here the nonideological character of aid that the Government provides. Our cases from Everson to Allen permitted have church-related schools to receive government aid in the form of secular, neutral, or non- ideological services, facilities, or materials that are sup- plied to all regardless students of the affiliation of the school attend. In Lemon DiCenso, how- ever, state programs subsidized teachers, either di- rectly or indirectly. Since teachers are not necessarily neutral, greater governmental surveillance
religiously guarantee aid required would state salary would not in fact subsidize instruction. There we found the resulting entanglement Here, excessive. on the hand, provides other the. facilities Government that are. themselves neutral. The risks of religiously Government aid and the religion corresponding need for surveillance are therefore reduced.
Finally, government entanglements with religion are reduced circumstance that, unlike the direct and payments continuing Pennsylvania program, under and all the regulation incidents of and surveillance, Government aid here is a one-time, single-purpose con- struction grant. There are no continuing financial rela- tionships or no dependencies, annual audits, and gov- no analysis ernment of an expenditures institution’s on secular as distinguished from Inspec- activities. tion to use is a minimal contact.
No of these three one factors standing alone is neces- sarily controlling; cumulatively all of shape them narrow and limited relationship with government which involves fewer less significant contacts than the two *14 state schemes beipre us in Lemon and DiCenso. The' relationship therefore potential has less for realizing the evils against substantive which the Religion Clauses were intended protect.
We think that cumulatively these three factors also substantially lessen the potential for divisive religious fragmentation in the'political arena. This conclusion is admittedly difficult to document, but neither ap- have pellants pointed to any continuing religious aggravation on this in political matter the processes. Possibly this character, can explained and diversity of the recipient colleges and universities and the absence of continuing relationship or intimate dependency between government and religiously affiliated institutions.
.689 potential for divisiveness inherent in the local essentially problems of secondary schools is primary significantly respect with college university less or whose student is not local widely diverse and dispersed. but constituency
V Finally, must we consider whether implementation of the Act inhibits the free exercise of religion violation Amendment. Appellants First. claim Free Exercise Clause is violated because are com- pelled to pay taxes, the proceeds of part which in finance grants under the Act. Appellants, however, are unable identify any coercion directed practice at the or exer- cise of their religious Board beliefs. Education v. Allen, supra, at 248-249. Their share the cost of the grants under the Act is not fundamentally distinguishable from impact of exemption tax sustained in Walz provision upheld textbooks in Allen.
We conclude Act does not Religion violate the Clauses of the First Amendment. except part o f (b) § (2) providing 20-year limitation on reli gious use restrictions contained § 751 (a)(2). We remand to the District Court with directions to. enter a judgment consistent this opinion.
Vacated and remanded. separate opinion [For of Mr. Justice Brennan, see ante, p. 642.] opinion of Mr.
[For Justice White, concurring in the judgment, ante, p. see .66T.]
Mr. Justice Douglas, with whom Mr. Justice Black and Mr. Justice Marshall concur, dissenting part. constitutional,
The correct principle for this case was stated Kennedy President in 1961 questioned When us *15 parochial and private to aid respecting his policy
schools:1 the aid to clearly prohibits Constitution
“[T]he there think I don’t schools. parochial school, to that. of any doubt is most the. probably is which case,
. “The Everson 4 decision by a 5 only provided case, celebrated bus provide community for a local possible itwas through But all nonpublic school children. rides to par- on that minority statements and majority prohibition clear very was a there question ticular Court Supreme The direct. the school aid to against determining. case in the Everson its decision made Aid the school. not to child, to the the aid that on debate for any room isn’t is—there school to the Constitution, by the prohibited It subject. that clear. very made that has Court Supreme our of possibility be no would there therefore And recommending it.” challenging suit brought
Taxpayer appellants Depart- by the made expenditures, of certain validity con- for the Welfare, Education, and Health, of ment (2) University, Heart library at Sacred (1) a struction College, Annhurst building at arts drama, music, Fairfield Univer- building at science and a library (3) College. Magnus laboratory at Albertus (4) sity, were institutions all of alleged complaint Catholic Roman orders and controlled funds if Conn., and Bridgeport, Diocese Higher I by Title authorized were construction amended, 1963, 364, as 77 Stat. ofAct Facilities Education Supp. V), then ed. and (1964 711-721 §§C.S. 20 U. it violated because was unconstitutional statute States) F. John United Papers of the Presidents Public. , 1, 1961. March 142-143, Conference News Kennedy, pp. Establishment Clause. A three-judge District Court *16 rejected convened and appellants’ claims. I
Title of the Higher Facilities Act of 1963 Education authorizes grants and up loans of the cost for 50% construction undergraduate academic facilities in both public and private colleges and A universities. project is if eligible, constrüction will result “in an ur gently needed substantial expansion of the institution’s student enrollment' capacity, capacity provide needed health care to students or personnel of the institution, or capacity to carry out' extension and continuing educa tion programs on the campus of such institution.” U. S. C. (1964 § 716 ed., Supp. V). The Commissioner of Education criteria, is authorized prescribe basic is instructed to “give special expansion consideration to of undergraduate enrollment capacity.” 20 U. S. C. § 717 (1964 ed., Supp. V).
Academic facilities are “structures suitable for use. as classrooms, laboratories, libraries, and related facilities- necessary or appropriate for instruction of students, or for research . . . programs.” Specifically excluded are facilities “used or to be used sectarian or instruction place for religious worship” or any facilities used “primarily connection any part of the program of a school department of divinity.” 20 U. S. C. § 751 (a) (1964 ed., Supp. V). The United States re tains 20-year interest in the facilities should a facility be used other than as an facility then academic the United States is entitled to recover an amount equal to the proportion of present valué which the federal grant bore to original .the cost of the facility. 20 U. § 754 S. C. . (b) According to stipulation entered below, during years the 20 the Office of Education attempts to insure that facilities are used in the manner required by the Act primarily by on-site inspections. At the end the 20- of. year period federal interest in the. the facility ceases and C. 20 U. S. pleases. See it as it may use college (a).
§ 754 sure, to be is, education in secular purpose public The is purpose Yet the sectarian program. furthered The viable. system school parochial by making aided and the stu- enrollment” increase “student is to purpose particular faith are those of obviously aimed at dents money. schools Parochial by taxpayers’ now financed com- atheists, or those of a agnostics, not beamed at may institutions sophisticated more peting sect. the dominant character minorities; but admit changed. is not at facility parochial to the school2
The reversion years outright grant, an measurable of 20 end facility. A gift worth of the present discounted *17 uncon- taxpayers’ plainly funds in that amount would be properly though The Court bars it even stitutional. reversionary in the form of a interest. disguised See Wilson, 268, Lane v. 307 U. S. 275. invalidation of this one clause cannot cure
But the of the statute a infirmities as whole. The constitutional is schools a block giving religious Federal Government The grant money to build certain facilities. fact that is 2 “It be a parochial clear to all that Roman Catholic should school church, integral part definitely is an of that as so as is the service n usually worship. parochial developed A school is in connection many a In church.. cases the church and school monies are not separated.. even in public school, Such a school is no sense a even though groups may children some from other be admitted to it. The buildings community not owned and controlled are a of American people, community not even of American Roman Catholic people-. ownership public The title of in a school is vested in the community, in local the élected officers of the school board or the city ownership council. But the title of parochial in a is school bishop individual, in the an appointed vested by, who is who is of, under the direct reports control and who pope to the in Rome.” Boettner, L. (1962). Roman Catholicism 375 than rather program aof beginning once at the given DiCenso is with Lemon and annually as apportioned First Amendment significance. constitutional out today I noted And as religion. of a establishment bars consistently DiCenso, has been bar in Lemon and Education, 330 v. Board Everson from interpreted Watkins, S. 367 U. Torcaso v. 1, 16, through U. S. small, amount, large any tax meaning:.“No 493 as or institu activities support be levied to can form whatever may called, or they whatever tions, it Thus religion.” practice teach or adopt to may a smaller rather than hardly impressive is giving^ period years, annually long over a money amount of once. The .at large amount gives instead Congress all. in effect that violations plurality’s distinction smafl years uncon period of are over a the First Amendment vio DiCenso) huge Lemon (see while stitutional minimis. I agree de cannot only once is occurring lation sophistry. with such DiCenso in Lemon in the cases Í have said
What here. The facilities financed today decided is relevant not to be used for “sectarian” by taxpayers’ funds are teaching and secular purposes. Religious teaching only schools that the strictest parochial so enmeshed in . compliance supervision and surveillance insure would re- may require with the condition. Parochial schools exercises, A parochial even the classroom. ligious operates spent school on one for one budget. not Money *18 other purpose purposes. becomes available for Thus federally fact that there are no observances in reli- controlling required financed facilities is not because in place buildings. observances will take other Our gious Vitale, Engel 421, v. 370 held re- decision in U. S. that a in prayer public of a schools violated the quirement Once these schools become feder- Clause. Establishment become bound ally funded federal standards McCracken, 296; Irrig. 275, U. S. Dist. v. (Ivanhoe opin 397, (concurring Wyman, 397 U. S. Rosado v. Hosp., Memorial 323 F. Cone Simkins v. Moses H. ion) ; Engelwould require adherence 959) accordingly 2d and of sur exercises. That'kind required religious an end to certainly to the control will be obnoxious veillance and radically change if done will church authorities and Yet if that surveil parochial of the school. character continuous, not this federal financ lance is searching obnoxious under the Establishment and Free ing is companion stated in Exercise Clauses for reasons cases. words, an entanglement
In other surveillance creates government religion of which First Amendment today’s to avoid. Yet after designed decision there requirement will be a of surveillance which will last for the useful life of the and as building previously we have hardly lack due noted, process is for the Govern “[it] ment that which it regulate subsidizes.” Wickard Filburn, price v. 131. subsidy U. S. under the Act is violation of the Free Exercise Clause. History in the Could a course of Methodism taught be in federally financed building? Would a religiously version of Quebec slanted Reformation or politics Duplessis permissible? under be How can the Govern is taught federally ment know what financed build ing without a continuous auditing classroom instruc tion? Yet both the Free Exercise Clause and academic freedom violated when the Government agent must present to determine whether the course content . satisfactory. I
As said the Lemon and DiCenso cases, parochial unitary school is institution with subtle blending sectarian secular practices instruction. Thus the way schools are no affeeted the minimal requirement the government financed facility may *19 place as a instruction for sectarian not “be used in item from one Money saved worship.” for religious By conducting elsewhere. be used is free to budget school has—-rent building, in services another is not called use. This for nonsectarian building free—-a- gpvernment because the retains simply Establishment life, for its useful even building intérest in the .continuing for pay need never a cent though schools building. the use church public
Much made of the need for aid to problems. in of their fiscal Dr. light pressing schools Presbyterian Church, however, Blake of Eugene C. in 1959:3 wrote in- pay one remembers that churches no
“When do not (churches die), heritance tax that churches may exempt business and from operate own percent corporate tax, the 52 income that real property purposes used church in (which for some construed) states most generously exempt, is tax prophesy it is not unreasonable to with reason- prudent management, ably ought churches to be economy able to control the whole of the nation predictable within That future. the growing property of the churches was partially wealth responsible revolutionary expropriations of church property in in England the sixteenth in century, France in the eighteenth century, Italy in the century, nineteenth and in Mexico. Russia, Czecho- and Hungary (to slovakia name a examples) few century, the twentieth seems self-evident. A gov- ernment with tax mounting problems cannot be ex- pected keep its hands off the wealth of a rich church forever. That such a always revolution is Exemption Tax Churches, and the Christianity 22, Today, No. 3, Aug. 1959, pp. 6, 7.
accompanied anticlericalism and atheism- should not be surprising.” mounting wealth the churches4 makes ironic
their, I public treasury. incessant demands on the said Comm’n, in Walz v. Tax my dissent 397 U. 714: S. “The churches religiously used real estate of the today constitutes a vast domain. M. Larson & *20 See Lowell, Riches, Revenues, C. The Their Churches: $141 and Immunities Their (1969). assets total over $22 billion and their annual incbme at least billion. Id., at 232. And the extent to which are feeding variety from in forms public trough of is alarm Id., ing. c. 10.” The Religion (1968);
See A. Business 20 Church Balk, (1967). 8 and' State is
It almosf unbelievable that we have made radical departure from Madison’s Remonstrance5 memorialized in today’s decision.
4 recently enjoyed Churches that owned an unrelated business until special advantage. organizations tax Other charitable were taxed on their “unrelated from businesses business taxable income” derived regularly carried on them. Code 512 of Internal Revenue § of That tax tax in the was normal and surtax. Thus 1954. corporations case of income derived it first from oiNthe 22% $25,000 any on 11. were additional income. Churches § 48% exempted (a)(2). from this income” tax. 511 “unrelated business § they paid any Thus no federal taxes on of their revenues. Under 1969, 487, advantage the Tax Reform Act the tax of 83 Stat. for respects unrelated business income all owned businesses May 1969) (prior 27, churches will be terminated after Janu ary 1, (b) (b) (16) (2), 1976. 83 Stat. U. S. C. 512 § § (1964 ed., V). I), Supp. Rep. (pt. pp. See H. No. 91-413 46 R. -47,48; Rep. 91-782, p. H. R. Conf. No. 67. reproduced appendices in dissenting The Remonstrance is to the opinion Rutledge, J., Everson, S., at 63, of 330 U. that to. of S., J., Comm’n, in Walz v. Tax 397 U. at 719. Douglas, paro- respect lack because not I dissent that despair feeling of a out but' schools chial First accorded been has history through which respect day lost. Amendment with we this case deal remembered should
It shall “Congress the command and with grants federal religion, an establishment respecting no law make million-dollar thereof.” free exercise prohibiting “three miserable today put Madison’s sustained grants do, Ias even thought, he But shame. pence” of tax- pocket out coming amount small even not of a church was coffers into the going payers ideal. constitutional our keeping below. judgment reverse I would