RUTLEDGE, J., dissenting.

330 U.S.

Our constitutional policy is exactly the opposite. It does not deny the value or the necessity for religious training, teaching or observance. Rather it secures their free exercise. But to that end it does deny that the state can undertake or sustain them in any form or degree. For this reason the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the twofold protection and, as the state cannot forbid, neither can it perform or aid in performing the religious function. The dual prohibition makes that function altogether private. It cannot be made a public one by legislative act. This was the very heart of Madison's Remonstrance, as it is of the Amendment itself.

It is not because religious teaching does not promote the public or the individual's welfare, but because neither is furthered when the state promotes religious education, that the Constitution forbids it to do so. Both legislatures and courts are bound by that distinction. In failure to observe it lies the fallacy of the "public function". "social legislation" argument, a fallacy facilitated by easy transference of the argument's basing from due process unrelated to any religious aspect to the First Amendment.

By no declaration that a gift of public money to religious uses will promote the general or individual welfare, or the cause of education generally, can legislative bodies overcome the Amendment's bar. Nor may the courts sustain their attempts to do so by finding such consequences for appropriations which in fact give aid to or promote religious uses. Cf. Norris v. Alabama, 294 U. S. 587, 590; Hooven & Allison Co. v. Evatt, 324 U. S. 652, 659; Akins v. Texas, 325 U. S. 398, 402. Legislatures are free to make, vision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of pre-eminence amongst the different societies of communities of Christians; Supplemental Appendix; Foote, Sketches of Virginia (1850) 340.

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RUTLEDGE, J., dissenting.

and courts to sustain, appropriations only when it can be found that in fact they do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small. No such finding has been or could be made in this case. The Amendment has removed this form of promoting the public welfare from legislative and judicial competence to make a public function. It is exclusively a private affair.

The reasons underlying the Amendment's policy have not vanished with time or diminished in force. Now as when it was adopted the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8." The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8.45 Public money devoted to payment of religious costs, educational or other, brings the quest for more. brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident

It

44 "Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world . . . . Because the establishment in question is not necessary for the support of Civil Government. . . . What influence in fact have ecclesiastical establishments had on Civil Society? . . . in no instance have they been seen the guardians of the liberties of the people." II Madison 183, 187, 188.

45 "Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." II Madison 183, 187.

RUTLEDGE, J., dissenting.

330 U.S.

groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all will embroil the state in their dissensions. Id., Par. 11.46

Exactly such conflicts have centered of late around providing transportation to religious schools from public funds. The issue and the dissension work typically, in Madison's phrase, to "destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects." Id., Par. 11. This occurs, as he well knew, over measures

46 "At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that 'Christian forbearance, love and charity,' which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased." II Madison 183, 189.

47 In this case briefs amici curiae have been filed on behalf of various organizations representing three religious sects, one labor union, the American Civil Liberties Union, and the states of Illinois, Indiana, Louisiana, Massachusetts, Michigan and New York. All these states have laws similar to New Jersey's and all of them, with one religious sect, support the constitutionality of New Jersey's action. The others oppose it. Maryland and Mississippi have sustained similar legislation. Note 49 infra. No state without legislation of this sort has filed an opposing brief. But at least six states have held such action invalid, namely, Delaware, Oklahoma, New York, South Dakota, Washington and Wisconsin. Note 49 infra. The New York ruling was overturned by amendment to the state constitution in 1938. Constitution of New York, Art. XI, 4.

Furthermore, in this case the New Jersey courts divided, the Supreme Court holding the statute and resolution invalid, 132 N. J. L. 98, 39 A. 2d 75, the Court of Errors and Appeals reversing that decision, 133 N. J. L. 350, 44 A. 2d 333. In both courts, as here, the judges split, one of three dissenting in the Supreme Court, three of nine in the Court of Errors and Appeals. The division is typical. See the cases cited in note 49.

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RUTLEDGE, J., dissenting.

at the very threshold of departure from the principle. Id., Par. 3, 9, 11.

In these conflicts wherever success has been obtained it has been upon the contention that by providing the transportation the general cause of education, the general welfare, and the welfare of the individual will be forwarded; hence that the matter lies within the realm of public function, for legislative determination. State courts have divided upon the issue, some taking the view that only the individual, others that the institution receives the benefit." A few have recognized that this dichotomy is false, that both in fact are aided.50

48

48 See the authorities cited in note 49; and see note 54.

49 Some state courts have sustained statutes granting free transportation or free school books to children attending denominational schools on the theory that the aid was a benefit to the child rather than to the school. See Nichols v. Henry, 301 Ky. 434, 191 S. W. 2d 930, with which compare Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S. W. 2d 963; Cochran v. Board of Education, 168 La. 1030, 123 So. 664, aff'd, 281 U. S. 370; Borden v. Board of Education, 168 La. 1005, 123 So. 655; Board of Education v. Wheat, 174 Md. 314, 199 A. 628; Adams v. St. Mary's County, 180 Md. 550, 26 A. 2d 377; Chance v. State Textbook R. & P. Board, 190 Miss. 453, 200 So. 706. See also Bowker v. Baker, 73 Cal. App. 2d 653, 167 P. 2d 256. Other courts have held such statutes unconstitutional under state constitutions as aid to the schools. Judd v. Board of Education, 278 N. Y. 200, 15 N. E. 2d 576, but see note 47 supra; Smith v. Donahue, 202 App. Div. 656, 195 N. Y. S. 715; State ex rel. Traub v. Brown, 36 Del. 181, 172 A. 835; Gurney v. Ferguson, 190 Okla. 254, 122 P. 2d 1002; Mitchell v. Consolidated School District, 17 Wash. 2d 61, 135 P. 2d 79; Van Straten v. Milquet, 180 Wis. 109, 192 N. W. 392. And cf. Hlebanja v. Brewe, 58 S. D. 351, 236 N. W. 296. And since many state constitutions have provisions forbidding the appropriation of public funds for private purposes, in these and other cases the issue whether the statute was for a "public" or "private" purpose has been present. See Note (1941) 50 Yale L. J. 917, 925.

50 E. g., Gurney v. Ferguson, 190 Okla. 254, 255, 122 P. 2d 1002, 1003; Mitchell v. Consolidated School District, 17 Wash. 2d 61, 68,

741700 0-47-8

51

RUTLEDGE, J., dissenting.

330 U.S.

The majority here does not accept in terms any of those views. But neither does it deny that the individual or the school, or indeed both, are benefited directly and substantially. To do so would cut the ground from under the public function-social legislation thesis. On the contrary, the opinion concedes that the children are aided by being helped to get to the religious schooling. By converse necessary implication as well as by the absence of express denial, it must be taken to concede also that the school is helped to reach the child with its religious teaching. The religious enterprise is common to both, as is the interest in having transportation for its religious purposes provided.

Notwithstanding the recognition that this two-way aid is given and the absence of any denial that religious teaching is thus furthered, the Court concludes that the aid so given is not "support" of religion. It is rather only support of education as such, without reference to its religious content, and thus becomes public welfare legislation. To this elision of the religious element from the case is added gloss in two respects, one that the aid extended partakes of the nature of a safety measure, the other that failure to provide it would make the state unneutral in religious matters, discriminating against or hampering such children concerning public benefits all others receive.

135 P. 2d 79, 82; Smith v. Donahue, 202 App. Div. 656, 664, 195 N. Y. S. 715, 722; Board of Education v. Wheat, 174 Md. 314, dissenting opinion at 340, 199 A. 628 at 639. This is true whether the appropriation and payment are in form to the individual or to the institution. Ibid. Questions of this gravity turn upon the purpose and effect of the state's expenditure to accomplish the forbidden object, not upon who receives the amount and applies it to that end or the form and manner of the payment.

51 The payments here averaged roughly $40.00 a year per child.