(dissenting). I dissent and vote to reverse the judgment of the Court of Claims. I agree with the majority that the decision of the United States Supreme Court in Lemon II (411 US 192) is controlling on the issue of Federal constitutional law involved in this appeal, but I disagree with the conclusion that Lemon II should be distinguished from this case.
While the majority concede that the Supreme Court ascribed "significant weight” to reliance interests in upholding the reimbursement in Lemon II, they minimize the true significance accorded in Lemon II to the reliance of the affected schools upon payments under the law later held unconstitutional. Equitable considerations governed the reasoning of the Supreme Court in Lemon II. The Lemon II court weighed the reliance of the schools and found this to offset the remote possibility of constitutional harm which would result from permitting the payments. The same principle applies to this case.
There is no dispute in this case that the appellant school did in fact rely upon reimbursement for services rendered during the second half of the 1971-1972 school year. The majority argue that this case is distinguishable from Lemon II because chapter 138 of the Laws of 1970 was declared unconstitutional in Levitt for the reason that it did not separate aid to be devoted to secular functions from aid to sectarian activities, whereas the law invalidated in Lemon I required so much governmental supervision that an "excessive entanglement” *401was fostered between church schools and State. The argument is made that the constitutional interest in this case is somehow "more tangible” because the statutes in the respective cases were struck down for different reasons and because the payments in Lemon I, in contrast to those in Levitt, were not invalidated "per se”. This is a distinction without a difference. In this case, as in Lemon II, the function of the judiciary is to weigh the constitutional harm arising from upholding onetime payments which had their origin in services rendered in accordance with a statute subsequently held to violate the United States Constitution, against the equitable consideration of providing reimbursement for services rendered in reliance by the school upon the subsequently invalidated statute.
The majority point out that the remoteness of constitutional harm found by the Supreme Court in Lemon II was based upon the fact that the unconstitutional entanglements had already occurred and that no further entanglement would arise from an authorization of the challenged payments. The same reasoning applies to this case. Chapter 996 of the Laws of 1972 does no more than authorize reimbursement for services rendered during the second semester of the 1971-1972 school year. To uphold this statute would no more promote "further” impermissible State aid to religion than the upholding of the statute in Lemon II promoted further "oversight of the instructional processes of sectarian schools” (Lemon v Kurtzman, 411 US 192, 202).
Finally, the majority emphasize the statement made in Lemon II that the "very process of oversight — now an accomplished fact — assures that state funds will not be applied for any sectarian purposes” (411 US 192, 202-203). Although it is true that no such oversight exists in this case, I disagree with the characterization of this difference by the majority as a "fundamental distinction”. Immediately after the sentence in which this statement was made, the Lemon II court entered into a several page discussion in which the possibility of constitutional harm was balanced against the reliance of the schools upon the funds. The formulation by the Supreme Court of a remedy based upon this equitable process, not the fact that the oversight therein provided certain constitutional protection, is the real thrust of Lemon II.
The instant case comes directly within Lemon II. The inter*402ests of fairness and justice dictate upholding the one-time reimbursement for past services authorized by this statute.
Sweeney and Kane, JJ., concur with Greenblott, J.; Herlihy, P. J., and Larkin, J., dissent and vote to reverse in separate opinions.
Judgment affirmed, without costs.