tional Limitations, makes it clear that the principal function of the No Establishment concept is to insure religious liberty.37 He states that certain things are not lawful under any of the American constitutions, among these:

Any law respecting an establishment of religion. The legislatures have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects.38

2. The Relevant Supreme Court Decisions

A. THE BRADFIELD, COCHRAN, AND EVERSON DECISIONS Bradfield v. Roberts, Cochran v. Board of Educ., and Everson v. Board of Educ. are the three decisions of the Supreme Court-and the only three-which directly concern aid-providing by government in the sense presented by the instant problem of federal aid to education in church-related schools.

Bradfield v. Roberts39 lends support to the argument that federal aid to secular education in church-related schools, of the kind described herein on page 411 supra, would be constitutional. The Court there held that the appropriation by Congress of money to a Catholic hospital, as compensation for the treatment and cure of poor patients under a contract, did not constitute an appropriation to a religious society in violation of the No Establishment Clause. The Court noted that the hospital was owned by a corporation and that, legally speaking, the corporation was secular and nonsectarian and subject solely to the control "of the government which created it." However, the Court also noted that the hospital was conducted under the auspices of the Roman Catholic Church. "The meaning of that allegation," said the Court, "is that the church

37 The Court in a recent case, in the context of discussing standing to sue, stated that "the writings of Madison, who was the First Amendment's architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority." McGowan v. Maryland, 366 U.S. 420, 430 (1961). Later in the same case the Court quoted Madison's comment on his original draft of the first amendment (which was not adopted by the Congress): "Mr. Madison 'said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. . . .'" Id. at 441.

38 Cooley, Constitutional Limitations 469 (2d ed. 1871).

39 175 U.S. 291 (1899).

exercises great and perhaps controlling influence over the management of the hospital."40 The Court also noted that the stockholders of the corporation were all nuns. Thus the Court (1) did not rule that a direct appropriation to a sectarian institution would be unconstitutional; (2) did hold that a direct appropriation might be made, for the performance of a public function, to an institution conducted under the auspices of a church which exercised "perhaps controlling influence" over it. Most significant in the Bradfield decision is the Court's direct disavowal of the point of view which had been advanced by those who brought the suit, that religious institutions performing public functions cannot, on account of the No Establishment Clause, be aided by government. The Court stated that the plaintiffs had said that Congress has no power to make "a law respecting a religious establishment," and then pointedly noted that "a law respecting a religious establishment" was "not synonymous with that [language] used in the Constitution," namely, "a law respecting an establishment of religion."41

Cochran v. Board of Educ.42 established that the use of government funds to provide secular textbooks for parochial school students is constitutionally justifiable as an expenditure for a public purpose. Under Louisiana statutes, boards of education were directed to provide "school books for school children free of cost to such children," and appropriations were made accordingly. The plaintiffs contended that they were being taxed to support a private purpose, contrary to the provisions of the fourteenth amendment. They stated the purpose of the acts to be "to aid private, religious, sectarian and other schools not embraced in the public educational system of the state by furnishing textbooks free to the children attending such private schools."43 The Supreme Court held the appropriations and the program of providing textbooks constitutional, in spite of the fact that children receiving textbooks under the program were enrolled in sectarian schools, noting that the textbooks involved were not religious books but books relating to secular subjects.

Again, in Cochran, the Court refused to hold that, because an institution was under religious auspices, its educational program could not receive governmental aid proportioned to the public function which such program involved. The Court was able clearly to distinguish the

40 Id. at 298.

41 Id. at 297.

42 281 U.S. 370 (1930).

43 Id. at 374.

public aspect of parochial school education from its private (religious) aspect and held, in effect, that whatever benefit might accrue to the institution from the aid given, such was incidental to the public benefit conferred upon the citizen-pupil and therefore constitutionally without significance. Per Hughes, C.J., the Court stated:

The schools, however, are not the beneficiaries of these appropriations. They obtain nothing from them, nor are they relieved of a single obligation because of them. The school children and the state alone are beneficiaries . . . . The legislation does not segregate private schools or their pupils, as its beneficiaries, or attempt to interfere with any matters of exclusively private concern. Its interest is education, broadly; its methods comprehensive. Individual interests are aided only as the common interest is safeguarded.44

It is true that at the time of the Cochran decision the Supreme Court had not specifically held the first amendment applicable to the states through the fourteenth amendment. But the great point of the Cochran opinion is this: it establishes flatly that the teaching of secular subjects in a parochial school is the performance of a public function and that such program may therefore be governmentally aided. It was not until the Everson case, discussed infra, that the Court considered the impact of the first amendment on legislation which met the public purpose requirements of the fourteenth amendment.

In Everson v. Board of Educ., the Supreme Court held constitutional a New Jersey statute which provided that reimbursement to parents might be made out of public funds for transportation of their children to (inter alia) Catholic parochial schools on buses regularly used in the public transportation system. The decision was made in the face of first amendment objections to the New Jersey program which had been directly raised. As can be seen, this holding is directly relevant to the issues stated on pages 401 and 411 of this study. The underlying principle of the case is plain: government aid may be rendered to a citizen in furtherance of his obtaining education in a church-related school. Justice Black, for the majority, stated:

It is undoubtedly true that by the New Jersey program children are helped to get to church schools. There is even the possibility that some of the children

44 Id. at 375.

45 Eighty-five years previously the Court, in a case involving a claim of a denial by Louisiana of rights under the free exercise clause of the federal constitution, had held that "the Constitution makes no provision for protecting the citizens of the respective States in their religious liberties." Permoli v. Municipality No. 1 of the City of New Orleans, 3 How. (44 U.S.) 589, 609 (1845).

46 330 U.S. 1 (1947).

might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State.47

It is true that Justice Black, in the course of his opinion, then stated: The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from Church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."48

49

For making this oft-quoted statement, Justice Black has been criticized as having gone well beyond the necessities of decision in essaying upon the supposed application of the No Establishment Clause to a number of cases not then before the Court. The statement, however, must be regarded as more than dictum. It is, in fact, part of the rationale of the decision, and must be read in the light of the actual result of the case: school bus benefits at government expense to citizens, to enable them to acquire education in church-related schools. That is to say: conformably with even so stringent an interpretation of the No Establishment Clause, secular education in church-related schools (and that was precisely and solely what was there involved) is supportable by govern

ment.

Unfortunately, the next succeeding paragraph of the Black opinion is often omitted from the discussion of disestablishment problems, but it forms the inseparable complement to his foregoing statement, necessarily resolving the tension between the two concepts of No Establishment and free exercise, which concepts would otherwise become unworkable absolutes. Justice Black stated:

We must consider the New Jersey statute in accordance with the foregoing

47 Id. at 17.

48 Id. at 15-16.

49 Justice Black, speaking for the Court this year in Torcaso v. Watkins, denies that the statement was dictum. 367 U.S. 488, 493-94 (1961).

limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the state's constitutional power even though it approaches the verge of that power. New Jersey cannot consistently with the "establishment of religion" clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.50

Everson thus teaches that aid rendered to a citizen in order to obtain state-prescribed education in a church-related school is not, in the constitutional sense, "aid to religion," or a "financing of religious groups," or "support of the religious function" (to borrow terms used by various objectants to aid to education in church-related schools). It is recognition of the principle that government may assist all public service aspects of an educational enterprise.51 The decision, therefore, conclusively establishes a logical and enlightened "social benefits" doctrine, weighing (in the best traditions of the Supreme Court) the social benefit52 conferred by government action, relatively to prohibited government action.

To what subjects may these benefits extend? Justice Black, writing for the majority, said that they included also police and fire protection, connections for sewage disposal, public highways and sidewalks. He

50 Id. at 16.

51 Justice Frankfurter, a dissenting justice in Everson, commented upon its holding in his separate opinion in the Sunday Law Cases as follows:

[T]his Court held in the Everson case that expenditure of public funds to assure that children attending every kind of school enjoy the relative security of buses, rather than being left to walk or hitchhike, is not an unconstitutional "establishment," even though such an expenditure may cause some children to go to parochial schools who would not otherwise have gone. The close division of the Court in Everson serves to show what nice questions are involved in applying to particular governmental action the proposition, undeniable in the abstract, that not every regulation some of whose practical effects may facilitate the observance of a religion by its adherents affronts the requirement of church-state separation. 336 U.S. at 467 (separate opinion).

52 See discussion at p. 433-34 infra of the many "social benefits" relating to education in church-related schools which already have the sanction of legislative constitutional precedent.