On June 25, 1973, the Court released three decisions relating to state aid to sectarian schools, which will be reviewed in the next three posts, beginning with
Committee for Public Education v. Nyquist. In this ruling, the Court noted that most cases under the Establishment Clause involve the relationship between religion and education, dealing with religious activities within the public schools, or public aid to sectarian schools.
In
Committee for Public Education, the Court noted precedent drawing a “line most clearly,” or “indisputably marked off,” with “firmly rooted” and “well defined” constitutional standards. However, extensive dissenting opinions interpreted precedent in a different manner. Perhaps, because of the weight of the contrary positions set out, the Court began
Committee for Public Education with a review of why precedent has a lesser significance in Religion Clauses cases, and how the wall of Separation of Church and State must be seen as unsanitary and bending.
The style in setting out this ruling decision is difficult and wandering, as if the Court actually desired the greatest seeming complexity for their reasoning. The below review formats the units of thought for clarity of understanding.
I
Justice Powell began the opinion of the Court by reviewing the basis of the general principle on the necessity for inconsistency in deciding cases on the Religion Clauses: – that James Madison “admonished that a "prudent jealousy" for religious freedoms required that they never become "entangled . . . in precedents;"
– that although the language of the First Amendment reflects the strongly held convictions of James Madison, Thomas Jefferson, and other founding fathers, and despite Madison's admonition for a prudent jealously to protect religious freedom and the “sweep of the absolute prohibitions” of the Clauses, “this Nation's history has not been one of entirely sanitized separation between Church and State, and it has never been thought either possible or desirable to enforce a regime of total separation...;”
– that prior cases on the Religion Clauses were based on a thorough and thoughtful scholarship by several of the most respected former justices;
– that precedent decisions are not free of “entangling precedents,” but neither has “Jefferson's metaphoric 'wall of separation' between Church and State... become 'as winding as the famous serpentine wall' he designed for the University of Virginia;” (In
McCollum v. Board of Education, 1948, Justice Jackson had warned that decisions regarding the Religion Clauses could end up as winding as the serpentine wall, designed by Jefferson at the University of Virginia);
– that “the controlling constitutional standards have become firmly rooted and the broad contours of our inquiry are now well defined.”
The Court further qualified this position on the necessity for inconsistency at footnote five.
The existence, at this stage of the Court's history, of guiding principles etched over the years in difficult cases does not, however, make our task today an easy one. For it is evident from the numerous opinions of the Court, and of Justices in concurrence and dissent in the leading cases applying the Establishment Clause, that no "bright line" guidance is afforded. Instead, while there has been general agreement upon the applicable principles and upon the framework of analysis, the Court has recognized its inability to perceive with invariable clarity the "lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612 (1971). And, at least where questions of entanglements are involved, the Court has acknowledged that, as of necessity, the "wall" is not without bends, and may constitute a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Id. at 403 U. S. 614.
In citing James Madison as a basis for selectively ignoring precedent on issues of religious freedom, the Court indicated by footnote that their quoted reference can be found in
Everson v. Board of Education, 1947, or
Walz v. Tax Comm'n, 1970, wherein the entire text of the
Memorial and Remonstrance against Religious Assessments is set out in appendixes to dissenting opinions. In reviewing the
Remonstrance, Madison's words on precedent can be found in the third of 15 objections, reprinted below, with the actual language quoted by the Court set in italic.
We remonstrate against the said Bill... 3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity in exclusion of all other Religions may establish with the same ease any particular sect of Christians in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?
II
The State of New York had “established three financial aid programs for nonpublic elementary and secondary schools.” 1. The first section provided “direct money grants for 'maintenance and repair' of facilities and equipment to ensure the students' “health, welfare and safety.” Qualifying schools served a high concentration of pupils from low income families, with grants of $30 per pupil, $40 if the facilities were 25 years or more old, the amount not to exceed 50% equivalent per pupil cost at public schools.
The New York legislature had found that a fiscal crisis in nonpublic education had caused a diminution of the physical condition of facilities in low income areas, affecting the health, welfare, and safety of students and and the stability of urban areas. "Maintenance and repair" is defined by the statute to include "the provision of heat, light, water, ventilation and sanitary facilities; cleaning, janitorial and custodial services; snow removal; necessary upkeep and renovation of buildings, grounds and equipment; fire and accident protection; and such other items as the commissioner may deem necessary to ensure the health, welfare and safety of enrolled pupils.”
2. The second section established tuition reimbursement for low-income parents of nonpublic school students, up to $50 each at grade school level, and $100 each for high school, not to exceed 50% of actual payment made. The legislature had found that “alternative educational systems should be available a pluralistic society;” that low income families have a diminished right of selection; and a sharp decline of nonpublic school enrollment would seriously jeopardize public school finances and quality.
The legislature specifically stated in both the first and second sections of the aid program, that “such assistance is clearly secular, neutral and non-ideological.”
3. The sections three to five gave tax relief to parents not qualifying for tuition reimbursement, creating a graduated deduction from adjusted gross income.
The legislature indicated the purposes of the tuition reimbursement program were pertinent as well to the tax relief section. The Court summarized further legislative findings on this third part of the aid program as follows.
(i) contributions to religious, charitable and educational institutions are already deductible from gross income; (ii) nonpublic educational institutions are accorded tax exempt status; (iii) such institutions provide education for children attending them and also serve to relieve the public school systems of the burden of providing for their education; and, therefore, (iv) the "legislature . . . finds and determines that similar modifications . . . should also be provided to parents for tuition paid to nonpublic elementary and secondary schools on behalf of their dependents. [Footnote 20]"
Schools which qualified under the aid program were profiled by the Court as follows.
Qualifying institutions, under all three segments of the enactment, could be ones that
"(a) impose religious restrictions on admissions; (b) require attendance of pupils at religious activities; (c) require obedience by students to the doctrines and dogmas of a particular faith; (d) require pupils to attend instruction in the theology or doctrine of a particular faith; (e) are an integral part of the religious mission of the church sponsoring it; (f) have as a substantial purpose the inculcation of religious values; (g) impose religious restrictions on faculty appointments; and (h) impose religious restrictions on what or how the faculty may teach." 350 F.Supp. 655, 663.
Of course, the characteristics of individual schools may vary widely from that profile. Some 700,000 to 800,000 students, constituting almost 20% of the State's entire elementary and secondary school population, attend over 2,000 nonpublic schools, approximately 85% of which are church-affiliated. And while "all or practically all" of the 280 schools [Footnote 22] entitled to receive "maintenance and repair" grants "are related to the Roman Catholic Church and teach Catholic religious doctrine to some degree," id. at 661, institutions qualifying under the remainder of the statute include a substantial number of Jewish, Lutheran, Episcopal, Seventh Day Adventist, and other church-affiliated schools. [Footnote 23]
III
Legal action was initiated under the New York aid program on the issue of whether “the substantially religious character of the intended beneficiaries, each of the State's three enactments offended the Establishment Clause.”
IV
In regard to the first part of the Lemon test, the Court noted, that the propriety of a stated secular purpose for a law does not by itself preclude that its primary effect may advance religion or foster excessive entanglements between Church and State.
V
In regard to section one of the aid program on “maintenance and repair” provisions, the Court began by noting, that no attempt was made, nor could be viewed as possible, under the law “to restrict payments to the upkeep of facilities used exclusively for secular purposes.” Without such a restriction, “this section has a primary effect that advances religion in that it subsidizes the religious activities of sectarian elementary and secondary schools.”
Holding that the “maintenance and repair” payments of the New York law advance religion can be distinguished from prior cases on aid to schools and religion.
1. In
Everson, the Court characterized reimbursement for bus fares to religious schools “as approaching the 'verge' of impermissible state aid.”
2. In
Board of Education v. Allen, 1968, a New York law only authorized “the provision of secular textbooks” for nonpublic schools (which was a loan to the parents).
3. In
McGowan v. Maryland, 1961, when the Court sustained “Sunday Closing Laws,” the beneficial effects to religious institutions was “ indirect and incidental.”
4. In
Walz, again the tax exemption relief for church property only benefited religious institutions indirectly and incidentally.
5. In
Tilton v. Richardson, 1971, aid to colleges and universities associated with a religious body for the construction of facilities was restricted to those used for a secular purpose.
Although the aid program specifically limits the section one payments to 50% of the amount expended for comparable upkeep work in public schools, which amount might represent their degree of secular service to society, the grant could actually cover all of a school's maintenance and repair expense, and such statistical assessments “will not suffice as a guarantee that state funds will not be used to finance religious education.”
In
Earle v. DiCenso, 1971, (decided in conjunction with
Lemon v. Kurtzman), the Court similarly held that 15% of a teacher's salary could not be paid by the state, in denying the assumption that teachers could “succeed in segregating 'their religious beliefs from their secular responsibilities'” State aid cannot be based on mere assumption that conflict between the religious and secular can be avoided.
VI
Section two of the aid program for tuition reimbursement to parents failed the “effect” test, of neither advancing nor inhibiting religion, for the same reasons as the “maintenance and repairs” assistance. The tuition aid must be held as invalid, as there is no guarantee the funds “will be used exclusively for secular, neutral, and non-ideological purposes.” The fact that the aid is disbursed to parents, rather than institutions, does not change the substance of it having a religious function. In
Everson, bus fares were reimbursed to parents, but this aid is “analogous to provision of services, such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools,” which are “so separate and so indisputably marked off from the religious function... Most bus rides have no inherent religious significance....” And in
Allen, the state law only authorized the loaning of non-religious textbooks. The effect of the tuition aid under the New York law “is unmistakably to provide desired financial support for nonpublic sectarian institutions.” As Justice Black noted, in dissenting in
Allen, the supporting argument for this type law could lead to upholding that state funds could be used to buy property for religious buildings, to pay the salaries of religious teachers, and that religious groups should stop relying on voluntary contributions but wait for the government to pick up all the bills.
The consideration
that the reimbursed money can be spent by parents in any desired manner has no relevance. The argument
that the reimbursement pays only a portion of the tuition bill, and an even smaller part of the religious school's total expense,
which represents the secular component of the educational function, was already rejected under the “maintenance and repairs” section of the law. “Obviously if accepted, this argument would provide the foundation for massive, direct subsidization of sectarian elementary and secondary schools. Our cases, however, have long since foreclosed the notion that mere statistical assurances will suffice to sail between the Scylla and Charybdis of 'effect' and 'entanglement.'” (Scylla and Charbdis are sea monsters from Greek mythology, located so close to each other, that passing sailors are unable to escape their peril).
In regard to the argument
that the tuition aid program promotes the free exercise of religion, the Court responded by noting the tension between the Religion Clauses, the necessity for an attitude of neutrality, and the importance of protecting “the limitations of the Establishment Clause now firmly emplanted.” Finally, the State argues that its program of tuition grants should survive scrutiny because it is designed to promote the free exercise of religion. The State notes that only "low income parents" are aided by this law, and without state assistance, their right to have their children educated in a religious environment "is diminished or even denied." [Footnote 45] It is true, of course, that this Court has long recognized and maintained the right to choose nonpublic over public education. Pierce v. Society of Sisters, 268 U. S. 510 (1925). It is also true that a state law interfering with a parent's right to have his child educated in a sectarian school would run afoul of the Free Exercise Clause. But this Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses, e.g., Everson v. Board of Education, supra; Walz v. Tax Comm'n, supra, and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of "neutrality," neither "advancing" nor "inhibiting" religion. [Footnote 46] In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one "advancing" religion. However great our sympathy, Everson v. Board of Eduction, 330 U.S. at 330 U. S. 18 (Jackson, J., dissenting), for the burdens experienced by those who must pay public school taxes at the same time that they support other schools because of the constraints of "conscience and discipline," ibid., and notwithstanding the "high social importance" of the State's purposes, Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 14 (1972), neither may justify an eroding of the limitations of the Establishment Clause now firmly emplanted.
VII
That the money involved in the third part of the aid program, sections three to five, consists of tax relief rather than a grant does not change the fact that the state is still being charged for the purpose of religious education. The argument
upholding the tax benefit as valid, because it goes to the parents, rather than the institution, was already rejected with the ruling on the tuition aid part of the program.
The tax exemption is not supported as constitutional under Walz v. Tax Comm'n, 1970. Tax exemptions for church property have a long history of approval in this country, on the basis of having a proper respect for both the Free Exercise and Establishment Clauses, which compels the state to pursue religious neutrality.
In the past, the taxation was regarded as hostility toward religion, and the tax exemption protected against such danger. However, special tax benefits do not represent neutrality but aid and advance religious institutions. Although the exemption on church property from taxation confers an indirect and incidental benefit, its purpose was to minimize involvement and entanglement between church and state, not to support or subsidize. The property exemption actually reinforced Separation of Church and State. Further, the benefit was not composed exclusively or predominately of religious institutions but covered all property devoted to religious, educational, or charitable purposes. However, the tax exemption under this aid program went primarily to the parents of sectarian schools. The narrowness of the benefited class is an important factor.
VIII
The Court then reviewed the New York aid program under the third part of the Lemon Test, which was stated in prior cases as – “the statute must not foster 'an excessive government entanglement with religion.'" The Court held New York's overall program must be considered unconstitutional as it “carries grave potential for entanglement in the broader sense of continuing political strife over aid to religion.'”
As Mr. Justice Black's opinion in Everson v. Board of Education, supra, emphasizes, competition among religious sects for political and religious supremacy has occasioned considerable civil strife, "generated in large part" by competing efforts to gain or maintain the support of government. 330 U.S. at 330 U. S. 9. As Mr. Justice Harlan put it, "[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point." Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 694 (separate opinion).
The Court recently addressed this issue specifically and fully in Lemon v. Kurtzman. After describing the political activity and bitter differences likely to result from the state programs there involved, the Court said:
"The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow." [Footnote 54]*
...the pressure for frequent enlargement of the relief is predictable... But we know from long experience with both Federal and State Governments that aid programs of any kind tend to become entrenched, to escalate in cost, and to generate their own constituencies... In this situation, where the underlying issue is the deeply emotional one of Church-State relationships, the potential for seriously divisive political consequences needs no elaboration...
*[Footnote 54]
The Court, in Lemon, further emphasized that political division along religious lines is to be contrasted with the political diversity expected in a democratic society:
"Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. Freund, Comment, Public Aid to Parochial Schools, 82 Harv.L.Rev. 1680, 1692 (1969)."
IX
In dissenting in part, chief Justice Burger, joined by Justice Rehnquist, and in part by Justice White, noted that precedent on the Religion Clauses laid down one solid, basic principle.that the Establishment Clause does not forbid governments, state or federal, to enact a program of general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that "aid" religious instruction or worship.
Upon the basis of this principle the Court upheld the reimbursement of bus fares in
Everson and the loaning of textbooks to students in nonpublic schools in
Board of Education v. Allen, 1968. Recognizing that Everson was the case "most nearly in point," the Allen Court interpreted Everson as holding that "the Establishment Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for their religious affiliation. . . ."
Id. at 392 U. S. 241-242. Applying that principle to the statute before it, the Allen Court stated:
"Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil, and ownership remains, at least technically, in the State. Thus, no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools...."
Notwithstanding, the Court held that such an indirect or incidental "benefit" to the religious institutions that sponsored parochial schools was not a conclusive indicium of a "law respecting an establishment of religion." [Footnote 2/4]
One other especially pertinent decision should be noted. In Quick Bear v. Leupp, 210 U. S. 50 (1908), the Court considered the question whether government aid to individuals who choose to use the benefits for sectarian purposes contravenes the Establishment Clause. There, the Federal Government had set aside certain trust and treaty funds for the educational benefit of the members of the Sioux Indian Tribe. When some beneficiaries elected to attend religious schools, and the Government entered into payment contracts with the sectarian institutions, suit was brought to enjoin the disbursement of public money to those schools. Speaking of the constitutionality of such a program, the Court said:
"But we cannot concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the Government is necessarily undenominational, as it cannot make any law respecting an establishment of religion or prohibiting the free exercise thereof."
Id. at 210 U. S. 81-82.
The essence of all these decisions, I suggest, is that government aid to individuals generally stands on an entirely different footing from direct aid to religious institutions...
It is admittedly difficult to articulate the reasons why a State should be permitted to reimburse parents of private school children -- partially at least -- to take into account the State's enormous savings in not having to provide schools for those children, when a State is not allowed to pay the same benefit directly to sectarian schools on a per-pupil basis. In either case, the private individual makes the ultimate decision that may indirectly benefit church-sponsored schools; to that extent, the state involvement with religion is substantially attenuated. The answer, I believe, lies in the experienced judgment of various members of this Court over the years that the balance between the policies of free exercise and establishment of religion tips in favor of the former when the legislation moves away from direct aid to religious institutions and takes on the character of general aid to individual families...
The Court appears to distinguish the Pennsylvania and New York statutes from Everson and Allen on the ground that, here, the state aid is not apportioned between the religious and secular activities of the sectarian schools attended by some recipients, while, in Everson and Allen, the state aid was purely secular in nature. But that distinction has not been followed in the past, see Quick Bear v. Leupp, supra, and is not likely to be considered controlling in the future. There are at present many forms of government assistance to individuals that can be used to serve religious ends, such as social security benefits or "G.I. Bill" payments, which are not subject to nonreligious use restrictions. Yet, I certainly doubt that today's majority would hold those statutes unconstitutional under the Establishment Clause.
Since I am unable to discern in the Court's analysis of Everson and Allen any neutral principle to explain the result reached in these cases, I fear that the Court has, in reality, followed the unsupportable approach of measuring the "effect" of a law by the percentage of the recipients who choose to use the money for religious, rather than secular, education... Thus, the Court observes as to the New York tuition grant program: "Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian." Ante at 413 U. S. 783 (emphasis added)...
The "primary effect" branch of our three-pronged test was never, at least to my understanding, intended to vary with the number of churches benefited by a statute under which state aid is distributed to private citizens...
The Court fully recognizes that the legislatures of New York and Pennsylvania have a legitimate interest in "promoting pluralism and diversity among . . . public and nonpublic schools," ante at 413 U. S. 773, in assisting those who reduce the State's expenses in providing public education, and in protecting the already overburdened public school system against a massive influx of private school children. And in light of this Court's recognition of these secular legislative purposes, I fail to see any acceptable resolution to these cases except one favoring constitutionality.
X
In dissenting, Justice Rehnquist, with the concurrence of Chief Justice Burger and Justice White, noted that tax deductions and exemption have a different status under the Religious Clauses. "The grant of a tax exemption is not sponsorship, since the government does not transfer part of its revenue to churches, but simply abstains from demanding that the church support the state. No one has ever suggested that tax exemption has converted libraries, art galleries, or hospitals into arms of the state or put employees 'on the public payroll.' There is no genuine nexus between tax exemption and establishment of religion."
397 U.S. at 397 U. S. 675 (emphasis added). MR. JUSTICE BRENNAN, in his concurring opinion, amplified the distinction between tax benefits and direct payments in these words:
"Tax exemptions and general subsidies, however are qualitatively different. Though both provide economic assistance, they do so in fundamentally different ways. A subsidy involves the direct transfer of public monies to the subsidized enterprise, and uses resources exacted from taxpayers as a whole. An exemption, on the other hand, involves no such transfer. . . . Tax exemptions, accordingly, constitute mere passive state involvement with religion, and not the affirmative involvement characteristic of outright governmental subsidy." Id. at 397 U. S. 690-691 (footnotes omitted).
Here, the effect of the tax benefit is trebly attenuated as compared with the outright exemption considered in Walz. There, the result was a complete forgiveness of taxes, while here the result is merely a reduction in taxes. There, the ultimate benefit was available to an actual house of worship, while here even the ultimate benefit redounds only to a religiously sponsored school. There, the churches themselves received the direct reduction in the tax bill, while here it is only the parents of the children who are sent to religiously sponsored schools who receive the direct benefit...
While it is true that the Court reached its result in Walz in part by examining the unbroken history of property tax exemptions for religious organizations in this country, there is no suggestion in the opinion that only those particular tax exemption schemes that have roots in pre-Revolutionary days are sustainable against an Establishment Clause challenge. As the Court notes in its opinion, historical acceptance alone would not have served to validate the tax exemption upheld in Walz, because "no one acquires a vested or protected right in violation of the Constitution by long use...'"
The reimbursement and tax benefit plans today struck down, no less than the plans in Everson and Allen, are consistent with the principle of neutrality.
XI
n dissenting Justice White, joined in part by Chief Justice Burger and Justice Rehnquist, noted that the “primary effect” part of the Lemon Test does not mean “any effect.” But whatever may be the weight and contours of entanglement as a separate constitutional criterion, it is of remote relevance in the cases before us with respect to the validity of tuition grants or tax credits involving or requiring no relationships whatsoever between the State and any church or any church school. So, also, the Court concedes the State's genuine secular purpose underlying these statutes. It therefore necessarily arrives at the remaining consideration in the threefold test which is apparently accepted from prior cases: whether the law in question has "a primary effect that neither advances nor inhibits religion." School District of Abington Township v. Schempp, supra. While purporting to accept the standard stated in this manner, the Court strikes down the New York maintenance law because its "effect, inevitably, is to subsidize and advance the religious mission of sectarian schools," and for the same reason invalidates the tuition grants. See ante at 413 U. S. 779-780. But the test is one of "primary" effect, not any effect. The Court makes no attempt at that ultimate judgment necessarily entailed by the standard heretofore fashioned in our cases. Indeed, the Court merely invokes the statement in Everson v. Board of Education, 330 U.S. at 330 U. S. 16, that no tax can be levied "to support any religious activities. . . ." But admittedly there was no tax levied here for the purpose of supporting religious activities, and the Court appears to accept those cases, including Tilton, that inevitably involved aid of some sort or in some amount to the religious activities of parochial schools. In those cases, the judgment was that as long as the aid to the school could fairly be characterized as supporting the secular educational functions of the school, whatever support to religion resulted from this direct, Tilton v. Richardson, supra, or indirect, Everson v. Board of Education, supra; Board of Education v. Allen, supra; Walz v. Tax Comm'n, supra; Hunt v. McNair, supra, contribution to the school's overall budget was not violative of the primary effect test or of the Establishment Clause.
There is no doubt here that Pennsylvania and New York have sought in the challenged laws to keep their parochial schools system alive and capable of providing adequate secular education to substantial numbers of students. This purpose satisfies the Court, even though to rescue schools that would otherwise fail will inevitably enable those schools to continue whatever religious functions they perform. By the same token, it seems to me, preserving the secular functions of these schools is the overriding consequence of these laws and the resulting, but incidental, benefit to religion should not invalidate them.
Final Note In the Rehnquist dissent, once again a justice noted that the most perplexing questions presented to the Court involve the meaning of the Religion Clauses.
Differences of opinion are undoubtedly to be expected when the Court turns to the task of interpreting the meaning of the Religion Clauses of the First Amendment, since our previous cases arising under these Clauses, as the Court notes, "have presented some of the most perplexing questions to come before this Court."
However, why did this perplexity arise only after 1947, at the same time that the concept of Separation of Church and State was stipulated as representing the true meaning of the First Amendment? Does the perplexity indicate a special interpretation of meaning is being forced on the Amendment?
The Court dismissed the argument that the tuition reimbursement under the New York law should be regarded as promoting free exercise of religion, by noting the tension that exists between the Free Exercise and Establishment Clauses, and that religious neutrality can only be maintained by refusing to let the latter clause to become eroded. Thus, has the Court ruled in this instance that the Establishment Clause makes the Free Exercise Clause unconstitutional? Then, according to the concept of Separation of Church and State, does the First Amendment contradict itself? Would the issues decided under the Amendment be just as complex, if an interpretation for its meaning were set out without inherent contradiction?
Does the quote of Madison on not becoming entangled in precedent in regard to religious liberty establish a legal basis within the doctrine of
Stare Decisis (defined with the last post on page two of topic thread) for ignoring precedent on First Amendment cases and upholding inconsistency in case decisions as proper and normal? Does the architectural design by Thomas Jefferson of the wall surrounding the University of Virginia truly help with understanding how deviations should occur to the doctrine of
Stare Decisis? Does the Court's reference to the mythological sea monsters, Scylla and Charbdis, actually clarify the approach to precedent utilized in the case? Is it possible that the Court is picking and choosing arguments to support their positions, which in reality are based merely on personal preference?
What are the examples in American history of taxation being used as a form of hostility toward religion, and of property tax exemptions being granted in order to foster Separation of Church and State, rather than promoting religion? And if such exemptions were not exclusively or predominately for churches, were they granted to other institutions also to foster Separation of Science/Education/Charity and State? Is there actually a clear and concrete basis for holding that the benefit to religious institutions is indirect and incidental in regard to property tax exemptions or school bus fare reimbursement, but the benefit is direct in regard to partial tax relief or tuition aid for parents of sectarian school students?
M. Paul Webb Copyright
