Page images
PDF
EPUB

The public welfare contribution of the Catholic schools must, however, be seen in one further aspect. In the school years 1957 and 1958 the average current expenditure per public school pupil in average daily attendance in the United States was $341.14.22 This means that the Catholics who supported the 5.3 million students in the Catholic elementary and secondary schools in 1960 absorbed what would otherwise have been an expense for all taxpayers in the order of magnitude of $1.8 billion. Even this figure gives a wholly inadequate picture of the estimated savings to the country by virtue of the existence of all private schools, from the grade school level through college and the university. The total current expenditures, capital outlay, and interest of all private educational institutions in 1958 was $4 billion.23 For the period 1950-59, the same expenditures of all private elementary and secondary schools are estimated at $13.9 billion.24

This in turn throws into bold relief another aspect of the public welfare contribution of the Catholic school system: this immense financial value-attributable to, it must be borne in mind, the providing of essential citizen education-is a value accruing to the nation not only out of the pay checks and savings accounts of millions of Catholic citizens but out of the very lives of a legion of other Catholic citizens-priests, nuns and brothers-who have dedicated themselves without recompense to teaching generation upon generation of young Americans.

Up to this point, this study has not discussed the constitutionality of federal aid to church-related education. What appears beyond contradiction, however, is the immense contribution to the public welfare made by church-related schools through their providing essential citizen education.

The demands of the education crisis relate directly to this, since it is the clear imperative of the times that all of our means of education must be utilized to their fullest extent, consonant with constitutional requirements. It is equally imperative that the pluralist structure and the basic freedoms of the nation be not lost while the education crisis is sought to be resolved.

This study is not a brief on behalf of the principle of federal aid to education. But it would appear undeniable that, so far as the question

22 Biennial Survey of Education in the United States: Statistics of State School Systems 1957-1958, at 73 (1961).

23 See U.S. Dept. of Health, Education, and Welfare, Trends 68 (1960).

24 See id. for figures on which this estimate is based.

is one of policy and not of constitutional law, if the federal government offers aid to education in public schools, aid should similarly be offered to education in church-related schools.

The question of policy considered, the problem of constitutionality may now be explored.

II

THE CONSTITUTION AND CHURCH-RELATED EDUCATION

The question presented, in its broadest terms, is whether the federal government may aid education in church-related schools. However, no proposal has been made that government undertake to pay the full cost of the education provided in a church-related school. Such a proposal might involve constitutional problems not presented by proposals for limited support of such education and might moreover foreshadow total governmental control of such education. The forms of limited aid being chiefly discussed are:

a. Matching grants to church-related educational institutions for secular instruction therein.

b. Long-term loans to church-related educational institutions for secular instruction therein.

c. Grants or loans of tuition to students, which may be used in churchrelated educational institutions.

d. Tax benefits to parents as part or total reimbursement for tuition expended by them in church-related (or other) educational institutions.

It is the conclusion of this study that (1) the church-related schools perform a public function which, by its nature is supportable by government; (2) that such support may be only in a degree proportionate to the value of the public function performed; (3) that such support may take the form of grants to institutions or of loans to institutions or the form of grants of tuition or tax benefits; (4) that the federal government may constitutionally provide support in any of the aforementioned forms.

In order to ascertain whether the foregoing conclusions with respect to constitutionality are correct, it is needful, first of all, to examine those judicial decisions and other materials which provide the constitutional background.

1. The "Religion" Clauses of the First Amendment The first amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The clause respecting "establishment" is the clause chiefly relied upon by the March 28, 1961 Memorandum of the Department of Health, Education, and Welfare25 as blocking most kinds of grants, loans, or tuition payments for education in church-related schools. Therefore, preliminary to an examination of the relevant judicial decisions, it is desirable to ascertain the historic meaning of that clause.

The No Establishment Clause was not the product of an anti-religious revolution. Unlike the French Revolution, the American Revolution was made by men of strong religious conviction. It is not conceivable that they would have written into their Constitution a clause the purpose of which would be to sterilize all public institutions of religious content. Virtually every document relating to the formation of the United States attests to this. The Declaration of the Causes and Necessity of Taking Up Arms, July 6, 1775, abounds with such phrases as "the divine Author of our existence," "reverence for our great Creator."26 In the Preamble and Resolution of the Virginia Convention, May 15, 1776, appeal is made to God as "the Searcher of hearts" respecting the sincerity of the colonists' declarations.27 The Declaration of Independence acknowledged God as the source of all human rights and stated that it is in order to secure these God-given rights that governments exist. The Articles of Confederation concluded by invoking "the Great Governor of the World."28 The Northwest and Southwest Ordinances, as has been noted, specifically related religion to education and good government.

Story, writing in 1833, stated:

Probably at the time of the adoption of the constitution, and of the first amendment to it. . . the general, if not the universal sentiment was, that Christianity ought to receive encouragement from the state, so far as it was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.29

25 Specific analysis of the Memorandum is contained in Annex B infra.

26 1 Journal of Congress I, 134-39 (1800 ed.).

27 Quoted in Documents Illustrative of the Formation of the Union of the American States 19 (Tansill ed. 1927).

28 Id. at 35.

29 Story, Commentaries on the Constitution of the United States 1868 (1833).

The prime purpose of the clause as then universally understood, was to prohibit the Congress from creating a national church or from giving any sect a preferred status.30 This is clear from the language of the original draft of the first amendment submitted by Madison to the House of Representatives:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.31

Professor Corwin comments:

That is, Congress shall not prescribe a national faith, a possibility which those states with establishments of their own . . . probably regarded with fully as much concern as those which had gotten rid of their establishments.32

The clause contains, of course, no such wording as "separation of church and state" or "wall of separation of church and state.' 133 Used according to its historical intendment, "separation of church and state" is a concept familiar to all from the time of the adoption of the first amendment. The term "wall of separation of church and state" finds its way into the opinions of the Supreme Court almost a century later in the case of Reynolds v. United States.34 There the phrase was quoted from the well-known letter of Thomas Jefferson to the Danbury Baptists, the phrase plainly being employed in Reynolds in the same sense in which it was employed by Jefferson, namely, to show that the No Establishment Clause deprived Congress of power to prescribe religious practices. That Jefferson did not consider the clause to erect a wall which would prevent all relationship between government and religion is plain from his report to the President and Directors of the Literacy Fund of the state-supported University of Virginia in 1822:

It was not however, to be understood that instruction in religious opinion and duties was meant to be precluded by the public authorities, as indifferent to the interests of society. On the contrary, the relations which exist between man and

30 Although there is some evidence that some considered the clause also as a protection of the right of the several states to maintain official church establishments.

31 1 Annals of Congress 434 (1789-91). (Emphasis added.)

32 Corwin, The Supreme Court as National School Board, 14 Law and Contemp. Prob. 11, 12 (1949).

33 Justice Frankfurter, in his concurring opinion in the Sunday Law Cases, states: "But the several opinions in Everson and McCollum, and in Zorach v. Clauson, 343 U.S. 306, make sufficiently clear that 'separation' is not a self-defining concept." McGowan v. Maryland, 366 U.S. 420, 461 (1961).

34 98 U.S. 145 (1878).

}

his Maker, and the duties resulting from those relations, are the most interesting and important to every human being and most incumbent upon his study and investigation.35

Jefferson then went so far as to suggest that the various sects establish religious schools on the confines of the university.

It would not have made sense in 1791, any more than it does today, to say that the No Establishment Clause prevents relationships-even cooperative relationships-between state and church. It is instead clear that an essential purpose of the clause was to prevent governmental transgressions upon religious liberty. It was fear of this and not fear of religion which prompted the drafting of the first version of the clause. Madison's first draft reveals this, the context plainly being one of respecting rights of conscience. Jefferson's "Bill for Establishing Religious Freedom," exposing the meaning of the clause, stressed that religious liberty required that no man should be compelled to support "any religious worship, place, or ministry whatsoever."38

Far, therefore, from being a mechanical formula, prescribing automatically a void between religion and the state, it was the original common understanding of the No Establishment Clause, that it existed, in the main, for the protection of religious liberty. Indeed, it was therefore properly seen as a pro-religion clause and not as an anti-religion clause. Such protection, it is plain, existed to preclude (a) the setting up of an official church; (b) approaching the equivalent thereof by giving any sect such a degree of preference that government would have provided a powerful inducement to the people to belong to such preferred sect. The clause was never intended to exclude religion from the democratic processes and the political forum, nor to prevent the sects from taking advantage of these in peaceful competition for lawful benefits. The No Establishment Clause attacked preference by law. Certainly it was never understood to mean that religious institutions which perform public services are disqualified to receive compensation for them through the governmental organs of the society which has benefited by the services.

Throughout the nineteenth century this was the accepted view of the matter. Story's views have been noted. Cooley, in his treatise, Constitu

35 19 Writings of Thomas Jefferson 414 (Memorial ed. 1904).

36 12 Hening, Statutes at Large 84, 86 (1785). The original draft of the bill, with indications of the deletions made by the Virginia Assembly, is given in 1 Stokes, Church and State in the United States 392-94 (1950).

« PreviousContinue »