concurring in result.
I agree with the majority in the portion of its opinion concluding that plaintiffs have standing to assert their claims. I also agree with the majority that expenditure of public funds for proper educational purposes is not "for the benefit of" a religious institution even if the delivery point of the educational services is a parochial school. Based on these two points, I concur in the result reached by the majority.
I part company with the majority insofar as it concludes or implies that Article I, Section 6 of the Indiana Constitution has nothing to say about funding for parochial schools. That section provides in rather clear language that "No money shall be drawn from the public treasury for the benefit of any religious or theological institution." Even if we accept the meager historical evidence that animus towards Catholics was not part of the thinking of the delegates to the 1851 Indiana constitutional convention, it seems quite a stretch to conclude that a parochial school is not a "religious institution" within the meaning of that constitutional provision. No one claims that the church-affiliated schools involved in this litigation provide a purely sectarian curriculum. Rather, although they raise their pupils in different faiths, each of these schools teaches its own single religious or theological doctrine as creed. That in my view plainly renders each of them a "religious institution."
There is nothing wrong with this, of course. Indeed, other provisions of the Indiana Constitution affirm the rights of religious groups that I think surely include the right to operate their own schools. Similarly, in Article VIII, the constitution provides for public support for public education. Thus, as the trial court pointed out, public support for education of parochial pupils in subjects not offered by parochial schools seems perfectly appropriate to me.
It is an entirely different question, however, whether all citizens of the state can be compelled to pay for religious education with tax dollars. The Indiana Constitution answers that in the negative. Article 1, Section 6 specifically prohibits public expenditures for "religious institutions." Schools of every denomination and faith are surely among these "institutions" and the only issue is whether a particular expenditure is "for the benefit" of the school. The majority reaches its conclusion that parochial schools may not be religious institutions by pointing to three items of historical interest: 1) one respected member of the 1851 convention, Robert Owen, described the Indiana provision as "found in" the then-recently adopted constitutions of Michigan and Wisconsin; 2) Michigan and Wisconsin prohibit expenditures for "religious seminaries"; 3) as understood in the mid 19th Century, a "seminary" was a school of any type, whether or not religiously affiliated. From these propositions, the majority concludes that Indiana's founders, by prohibiting funding of religious "institutions," intended to remove religious schools from the list of prohibited beneficiaries of public largesse. I reach *170the opposite conclusion. One obvious inference from these facts is that we should take Robert Owen at his word. If the Indiana provision is "found in" other earlier constitutions which barred funding of religious schools (described as "seminaries" by our sister states), it follows that parochial schools, Catholic or otherwise, were precisely the target of Article I, Seetion 6. And to the extent there is significance in the selection of "institutions" rather than "seminaries," I would think that difference in language supports the conclusion that the 1851 Constitution intended to expand, not contract, the type of religious entities for which public expenditure is prohibited. Surely a school or seminary is one form of "institution" as the term was and is commonly understood.
To the extent the majority finds Michigan and Wisconsin authority significant, I submit that these states both assume that a parochial school is a "religious institution" and resolve the issue before them solely on the question of whether an expenditure is "for the benefit" of the institution. On that issue, both states foeus on whether legislation has the primary effect of advancing religion, and whether the legislature designed the legislation to benefit a parochial school. Leading cases from both states assume they are addressing a "religious institution" when dealing with parochial schools and proceed to the "for the benefit of" analysis. For example, in Advisory Opimion re Constitutionality of P.A.1970, No. 100, 384 Mich. 82, 180 N.W.2d 265 (1970), relied on by the majority, the Michigan Supreme Court focused on the legislative purpose of the act in question and the primary effect of the legislation, noting that incidental benefits accrued do not, by themselves, invalidate a legislative enactment. Id. at 270, 274. In Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602 (Wis.1998), the Wisconsin Supreme Court specifically identified the case as turning on whether or not the legislation's primary purpose was "for the benefit of" a religious institution, not whether the parochial school was a "religious seminary" as the term appears in the Wisconsin Constitution, Article 1, Section 18. Id. at 621. The Wisconsin Supreme Court was quite specific: "[ululike the court of appeals, which focused on whether sectarian private schools were 'religious seminaries' under art. 1, § 18, we focus our inquiry on whether the aid provided by the amended MPCP is 'for the benefit of such religious institutions." Id. In resolving this second issue, the court took an approach similar to the majority's approach to the "for the benefit of" problem: "[the crucial question, under art. 1, § 18, as under the Establishment Clause, is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion." Id. (citations omitted).
In sum, I agree that the legislation involved in this case is constitutional because it does not expend funds for the benefit of a religious institution. But the majority would implicitly leave the door open to public funding of sectarian schools. The Constitution stands squarely against that proposition, and for that reason I respectfully dissent from the portion of the majority opinion addressing the religious institutions issue.
SULLIVAN, J., concurs.