Committee for Public Education & Religious Liberty v. Nyquist

Mr. Chief Justice Burger,

joined in part by Mr. Justice White, and joined by Mr. Justice Rehnquist, concurring in part and dissenting in part.*

I join in that part of the Court’s opinion in Committee for Public Education & Religious Liberty v. Nyquist, ante, p. 756, which holds the New York “maintenance and repair” provision1 unconstitutional under the Establishment Clause because it is a direct aid to religion. I disagree, however, with the Court’s decisions in Nyquist and in Sloan v. Lemon, post, p. 825, to strike down the New York and Pennsylvania tuition grant programs and the New York tax relief provisions.2 I believe the Court’s decisions on those statutory provisions ignore the teachings of Everson v. Board of Education, 330 U. S. 1 (1947), *799and Board of Education v. Allen, 392 U. S. 236 (1968), and fail to observe what I thought the Court had held in Walz v. Tax Comm’n, 397 U. S. 664 (1970). I therefore dissent as to those aspects of the two holdings.3

While there is no straight line running through our decisions interpreting the Establishment and Free Exercise Clauses of the First Amendment, our cases do, it seems to me, lay 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. Thus, in Everson the Court held that a New Jersey township could reimburse all parents of school-age children for bus fares paid in transporting their children to school. Mr. Justice Black’s opinion for the Court stated that the New Jersey “legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” 330 U. S., at 18 (emphasis added).

Twenty-one years later, in Board of Education v. Allen, supra, the Court again upheld a state program that provided for direct aid to the parents of all schoolchildren including those in private schools. The statute there required “local public school authorities to lend textbooks free of charge to all students in grades seven through 12; students attending private schools [were] included.” 392 U. S., at 238. Recognizing that Ever-son was the case “most nearly in point,” the Allen Court interpreted Everson as holding that “the Establishment *800Clause does not prevent a State from extending the benefits of state laws to all citizens without regard for their religious affiliation . . . Id., at 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.” Id., at 243-244 (emphasis added).

The Court’s opinions in both Everson and Allen recognized that the statutory programs at issue there may well have facilitated the decision of many parents to send their children to religious schools. Everson v. Board of Education, supra, at 17-18; Board of Education v. Allen, supra, at 242, 244. See Norwood v. Harrison, ante, at 463 n. 6 (1973). Indeed, the Court in both cases specifically acknowledged that some children might not obtain religious instruction but for the benefits provided by the State. 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.” 4

*801One 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 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. I say “generally” because it is obviously possible to conjure hypothetical statutes that constitute either a subterfuge for direct aid to religious institutions or a discriminatory enactment favoring religious over nonreligious activities. Thus, a State could not enact a statute providing for a $10 gratuity to everyone who attended religious services weekly. Such a law would plainly be governmental sponsorship of religious activities; no statutory preamble expressing purely sec*802ular legislative motives would be persuasive. But, at least where the state law is genuinely directed at enhancing a recognized freedom of individuals, even one involving both secular and religious consequences, such as the right of parents to send their children to private schools, see Pierce v. Society of Sisters, 268 U. S. 510 (1925), the Establishment Clause no longer has a prohibitive effect.5

This fundamental principle which I see running through our prior decisions in this difficult and sensitive field of law, and which I believe governs the present cases, is premised more on experience and history than on logic. 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. This judgment reflects the caution with which we scrutinize any effort to give official support to religion and the tolerance with which we treat general welfare legislation. But, whatever its *803basis, that principle is established in our cases, from the early case of Quick Bear to the more recent holdings in Everson and Allen, and it ought to be followed here.

The tuition grant and tax relief programs now before us are, in my view, indistinguishable in principle, purpose, and effect from the statutes in Everson and Allen. In the instant cases as in Everson and Allen, the States have merely attempted to equalize the costs incurred by parents in obtaining an education for their children. The only discernible difference between the programs in Everson and Allen and these cases is in the method of the distribution of benefits: here the particular benefits of the Pennsylvania and New York statutes are given only to parents of private school children, while in Ever-son and Allen the statutory benefits were made available to parents of both public and private school children. But to regard that difference as constitutionally meaningful is to exalt form over substance. It is beyond dispute that the parents of public school children in New York and Pennsylvania presently receive the “benefit” of having their children educated totally at state expense; the statutes enacted in those States and at issue here merely attempt to equalize that “benefit” by giving to parents of private school children, in the form of dollars or tax deductions, what the parents of public school children receive in kind. It is no more than simple equity to grant partial relief to parents who support the public schools they do not use.

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 *804controlling 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. Indeed, in discussing the New York tax credit provisions, the Court’s opinion argues that the “tax reductions authorized by this law flow primarily to the parents of children attending sectarian, nonpublic schools.” Ante, at 794. While the opinion refrains from “intimating whether this factor alone might have controlling significance in another context in some future case,” ibid., similar references to this factor elsewhere in the Court’s opinion suggest that it has been given considerable weight. 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 783 (emphasis added).

With all due respect, I submit that such a consideration is irrelevant to a constitutional determination of the “effect” of a statute. For purposes of constitutional adjudication of that issue, it should make no difference whether 5%, 20%, or 80% of the beneficiaries of an educational program of general application elect to utilize their benefits for religious purposes. The “primary effect” branch of our three-pronged test was never, at least to my understanding, intended to vary with the *805number of churches benefited by a statute under which state aid is distributed to private citizens.

Such a consideration, it is true, might be relevant in ascertaining whether the primary legislative purpose was to advance the cause of religion. But the Court has, and I think correctly, summarily dismissed the contention that either New York or Pennsylvania had an improper purpose in enacting these laws. 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 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.

I would therefore uphold these New York and Pennsylvania statutes. However sincere our collective protestations of the debt owed by the public generally to the parochial school systems, the wholesome diversity they engender will not survive on expressions of good will.

Mr. Justice White joins this opinion insofar as it relates to the New York and Pennsylvania tuition grant statutes and the New York tax relief statute.

[This opinion applies also to No. 72-459, Sloan, Treasurer of Pennsylvania, et al. v. Lemon et al., and No. 72-620, Crouter v. Lemon et al., post, p. 825.]

N. Y. Laws 1972, c. 414, § 1, amending New York Educ. Law, Art. 12, §§ 549-553 (Supp. 1972-1973).

Pa. Laws 1971, Act 92, Pa. Stat. Ann., Tit. 24, § 5701 et seq. (Supp 1973-1974); N. Y. Laws 1972, c. 414, § 2, amending N. Y. Educ. Law, Art. 12-A, §§ 559-563 (Supp. 1972-1973); N. Y. Laws 1972, c. 414, §§ 3, 4, and 5, amending N. Y. Tax Law §§612 (c), 612 (j) (Supp. 1972-1973).

Mr. Justice Rehnquist’s dissent, which I join, states the reasons why I believe the Court has gravely misrepresented the Court’s opinion in Walz. In this opinion, I state additional reasons why I dissent from Parts II-B and II-C of the Court’s opinion.

In Lemon v. Kurtzman, 403 U. S. 602 (1971), the Court specifically distinguished Everson and Allen on the ground that those cases involved aid to the parents and children and not to parochial schools:

“The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. This factor distinguishes both Everson and Allen, for in both those *801cases the Court was careful to point out that state aid was provided to the student and his parents — not to the church-related school. . . .” Id., at 621 (emphasis, except for case names, added).

These considerations do not, however, justify similar state assistance accruing to the benefit of private schools having discriminatory policies. See Norwood v. Harrison, ante, at 461-468.