(concurring in part and dissenting in part). The trial court was correct in removing the racial and sexual restrictions on the beneficiaries of the Fuller Scholarship Fund; it erred, however, in refusing to remove the religious restriction.
Article first, § 20, of the Connecticut constitution, as amended, provides that: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.” The guarantee of equal protection is “aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other.” Truax v. Corrigan, 257 U.S. 312, 332-33, 42 S. Ct. 124, 66 L. Ed. 254. The equal protection provisions of the federal and state constitutions “have the same meaning and impose similar constitutional limitations.” Karp v. Zoning Board, 156 Conn. 287, 295, 240 A.2d 845; Cyphers v. Allyn, 142 Conn. 699, 703, 118 A.2d 318.
Pursuant to § 45-100o, of the General Statutes, as amended, Public Acts 1973, No. 73-548, § 7, the plaintiffs came to court seeking the removal of the racial and sexual restrictions. When such relief is sought, the law mandates the involvement of both the attorney general and the Superior Court. In response to the complaint, the attorney general filed a counterclaim requesting the court also to remove the religious restriction. The plaintiffs contested the relief sought in the counterclaim.
The attorney general is required by § 3-125 of the General Statutes to “represent the public inter*511est in the protection of any gifts, legacies or devises intended for public or charitable purposes.” The attorney general’s role in this case is sufficient alone to constitute state action. Of equal significance is the involvement of the judiciary. “That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.” Shelley v. Kraemer, 334 U.S. 1,14, 68 S. Ct. 836, 92 L. Ed. 1161. The judicial act of the highest court in the state, in authoritatively construing and enforcing its laws, is the act of the state. Shelley v. Kraemer, supra, 15; Twining v. New Jersey, 211 U.S. 78, 90-91, 29 S. Ct. 14, 53 L. Ed. 97.
The retention of the religious restriction by the court can only be viewed as governmental approval of private discrimination. The claim that private discrimination is constitutionally protected must give way to the no less legitimate claim that the state is constitutionally prohibited from engaging in discriminatory conduct or encouraging private parties to discriminate. That constitutional prohibition ensures that private conduct inconsistent with public policies, while free to continue, will not receive official encouragement.
A testatrix devised her estate to Stanford University School of Medicine for the establishment of a doctoral fellowship subject to the following provision: “Recipients must be of the white race, protestant religion, and citizens of the United States, Canada, England, Scotland, Ireland, or Wales.” The university would not accept the legacy and requested the court to delete the religion *512requirement. The attorney general urged that the race requirement be stricken also. The court ordered removal of all restrictive provisions saying that the court could not lend its hand in aid of discrimination ; that an individual trustee was constitutionally free, as a private individual, to discriminate, but the court is not; that state courts cannot promote or give effect to private contracts that deny the equal protection of the laws. In re Estate of Ruth Snively Walker, No. 71095, California Superior Court, Santa Barbara County, April 23, 1965; Shelley v. Kraemer, supra. There is ample authority to permit a court to carry out a testator’s general charitable intent notwithstanding the need to repudiate the decedent’s intent with reference to some factor of lesser significance. Estate of Tarrant, 38 Cal. 2d 42, 237 P.2d 505; Estate of Loring, 29 Cal. 2d 423, 175 P.2d 524.
Were the present scholarship fund a noncharitable trust, the sexual, racial and religious restrictions would be protected from state interference. The scholarship fund here, however, is conceded to be a charitable educational trust. A charitable trust is one which performs some governmental function, such as fostering education, relief of poverty, care of the sick or aged, burial of the dead, or performs some other public task which relieves the governmental burden of the state. Because charitable trusts perform such governmental duties, they are accorded state recognition and protection, and receive the benefit of state and federal tax exemptions as well as numerous other special statutory privileges.
Because charitable trusts are dedicated to the public interest, state action by both the attorney general and the courts is required before any modi*513fication of their provisions can be made. When modifications are sought, as in this case, which involve the retention of a discriminatory restriction, the attorney general and the court, in approving such a modification, would be lending the power of the state in aid of discrimination. While an individual trustee is constitutionally free, as a private individual, to discriminate, the court never is. In fact, courts cannot promote or give effect to private contracts, let alone public charities, that deny equal protection of the laws. Shelley v. Kraemer, supra.
The power to dispose of property at death is a privilege granted by law, supervised through probate and administered by courts and judicially appointed fiduciaries. While these incidents of ministerial control have been thought too slight to constitute state action, the state’s role in a charitable trust is all this and much more: The trust becomes operative only after a court has found, either specifically or by inference, that it is charitable. The state bestows privileges, of which tax immunity is only one. It creates and defines charitable trusts, grants them perpetual existence, modernizes them through the cy pres doctrine, appoints and regulates the trustees, approves accounts, construes ambiguous language and sometimes imposes a less stringent standard of tort liability on such trusts than on their private counterparts. 2A Bogert, Trusts and Trustees $ 401; Clark, “Charitable Trusts, the Fourteenth Amendment and the Will of Stephen Girard,” 66 Yale L.J. 979. These are practical benefits, granted or withheld by action of government.
But state action does not end with the conferral of those benefits. Accountability to somebody is required. Some entity is needed to protect the public *514and bring the trustee before the court for an accounting. All the states in this country, either by statute or decision, have vested that responsibility for enforcement in a governmental official, usually the attorney general. 2A Bogert, Trusts and Trustees § 411.
Accordingly, the administration of a charitable trust is always characterized as state action. Basic to the grant of enforcement powers to the attorney general is the law’s recognition that the words of the dead are only as effective as living society, acting through its governmental agents, chooses to make them. And while a living person may use his property to indulge his discriminatory purposes, he should not be allowed to force the state to effectuate post-death public purposes undermining the standards of society. As Mr. Justice Black once said of the rights of property: “The more an owner . . . opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Marsh v. Alabama, 326 U.S. 501, 506, 66 S. Ct. 276, 90 L. Ed. 265.
Moreover, the court’s removal of the religious restriction will not inhibit the practice of one’s religious belief nor pose any threat to the religious faith involved in this case. It is undisputed that this is an educational trust. The removal, therefore, of the religious restriction would not interfere with the settlor’s principal intent of fostering education and would not violate the first amendment free exercise clause. The restriction pertains merely to qualifications for scholarships: it does not rise to the level of constitutional concern. That religious restrictions are as unlawful as racial restrictions has been clearly established by the action of Con*515gress in enacting the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2. None of those statutes has been found invalid. See In re Hawley’s Estate, 32 Misc. 2d 624, 223 N.Y.S.2d 803; Howard Savings Institution v. Peep, 34 N.J. 494, 498, 170 A.2d 39.
On September 28, 1967, in light of Public Acts 1967, No. 636 (General Statutes §§ 2-53a, 2-53b, 2-53c, 31-122, 31-123), the governor of Connecticut issued the following executive order: “No State facility shall be used in the furtherance of any discriminatory practice, nor shall any State agency become a party to any agreement, arrangement or plan which has the effect of sanctioning discriminatory practices.”
I would find error, set aside the judgment and remand the case with direction to render judgment as on file except that it should also reflect as being in favor of the attorney general on his counterclaim.