dissenting.
The issue before this Court is whether it is permissible for the Fiscal Court of Jefferson County (Fiscal Court) to subsidize the transportation system for the Catholic School System in Jefferson County (Catholic Schools) which is operated by the Catholic Archdiocese of Louisville (Archdiocese). The majority has found that such a subsidy is permissible under the Constitution of the Commonwealth. I cannot agree with this analysis and therefore I must respectfully dissent.
The reason for my dissent on this issue is a question raised, but left unanswered by the majority. As I will discuss subsequently, and in greater detail, the question posed is how does having the taxpayers of Jefferson County pay for the transportation of Catholic school children make this transportation any safer than if it were paid for by either their parents or the Archdiocese itself? If this question strikes the reader as bizarre, then I, too, agree because I find it bizarre and unanswerable. However, it is the one that the majority has raised by its decision.
Since the majority opinion discusses the facts of this case in detail, I will not recount them in a duplicative fashion, but I shall take the time to lay out certain additional details that I believe are necessary for the proper resolution of this case. There is no question that the purpose of the Archdiocese’s operation of the Catholic Schools is to further a religious, as well as an educational goal. I mention the religious purpose of these schools to lay the appropriate foundation for an analysis of the constitutionality of the resolutions passed by the Fiscal Court. Accordingly, fiscal aid to private religious schools must be for another purpose than to simply defray the costs of a private religious education. Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945).
The precise structure of under what circumstances payments flowed from the Fiscal *916Court to the various bus companies is highly relevant to the inquiry at hand. Apparently the only role the Fiscal Court played in this matter was to issue checks to the bus companies contracted by the Archdiocese to transport the students to and from the Catholic Schools. The Archdiocese handled all decisions regarding schedules and routing. At no point did the Fiscal Court enter into any negotiations with any bus company. I feel comfortable in saying that all the Fiscal Court did here was pay the bus companies for the previously contracted services.
The Fiscal Court made the payments on June 7 and 13, 1998, to the various bus companies that the. Archdiocese had contracted. It made the payments after the school year had ended. Since the contracts with these bus companies required the Archdiocese to pay on a monthly basis, the Fiscal Court paid for services that had already been paid for by the Archdiocese. The relevance of the timing of the payments to this case is that the Fiscal Court was paying for services which had already been rendered.
While in a normal case involving aid to private schools I would discuss the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution, that is unnecessary since the Constitution of the Commonwealth of Kentucky provides substantially stronger protections from encroachment by the state or religion into their respective spheres from the other. U.S. Const, amend. I; Ky. Const. § 5. While the majority pays lip service to the idea that the Commonwealth’s Constitution mandates a “much stricter interpretation” of the establishment of religion clause than that the Federal Constitution, later in this same opinion it cites to a recent United States Supreme Court decision which “liberalized the circumstances under which aid to parochial educational institutions is permitted.” Op. at 911. (citing Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)). If the Constitution of the Commonwealth mandates a “much stricter interpretation” of the establishment clause, then how does the action of the United States Supreme Court have any bearing on this issue? Since the Constitution of the Commonwealth places greater limits than does the Federal Constitution on what aid the Commonwealth can give to private religious groups, I will address this issue by discussing the cases of this Court which interpret the relevant sections of the Kentucky Constitution.
In Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945), this Court held that furnishing transportation to private school students was a legitimate “exercise of the police power for the protection of childhood against the inclemency of weather and from the hazards of present-day highway traffic.” Id. at 932. The issue in Nichols was similar to the instant case in that the constitutionality of a statute that provided transportation for private religious school students was at issue. In that opinion, this Court reasoned that since only an indirect benefit was provided to the religious schools themselves and that the provision of transportation was a legitimate exercise of the police power, the statute was constitutionally sound. Id. at 935.
In Fannin v. Williams, Ky., 655 S.W.2d 480 (1983), the issue before this Court was whether supplying textbooks to the students of private religious schools was permissible for the state. The Fannin court distinguished its decision from Nichols by focusing on the purpose of the proposed aid. “If the exclusive purpose of the statute is to pay the expenses of children in private schools, this constitutional provision has been directly violated.” Id. at 484. In Nichols, this Court found that the aid supplied was permissible as it was being supplied pursuant to the state’s police powers. In Fannin, this Court found that the textbooks were being supplied for an educational purpose that was impermissible when considered with the other facts of Fannin.
Fannin is relevant to the instant case for the proposition that aid cannot be supplied to a private religious school unless it is for a purpose other than to reduce the cost of a religious education. When combined with the holding of Nichols, I believe that the lesson to be taken is that aid is only permissible when it is being given for a non-educational purpose (i.e., aid is not being given simply to reduce the cost to the school or to the parents of a private religious education). *917In the instant ease there is no other reason offered for why the aid is being supplied. There is no reason to invoke the state’s police powers because the means of transportation already provided from private sources does not pose a danger to the children’s safety. The Fiscal Court would merely be taking over the already existing services, which, I assume, it feels is a reasonable and safe method of transporting them to school. Moreover, if there is a threat, there is no indication by the Fiscal Court how this threat is reduced by having the state pay for the same unsafe system of transportation.
One constitutional problem noted in Fan-nin was the fact that the request for textbooks did not come from the individual students or their families, but the request came from the administrator of the school that the student attended. Id. at 488. Likewise, in the instant case, the requests for transportation did not come from the students — all arrangements were made by the Archdiocese. Hence, this presents an additional constitutional infirmity previously outlined by our decisions.
Further, in Fiscal Court of Jefferson County v. Brady, Ky., 885 S.W.2d 681 (1994), this Court held that a transportation subsidy given by the Fiscal Court to private religious schools in Jefferson County was impermissible since, inter alia, payment was made directly by the Fiscal Court to the Office of the Catholic Schools. Accordingly, once that money had been paid, the Fiscal Court lost all control over those funds. The only difference between the instant ease and Brady is that in the instant case the funds are paid to the designee of the Catholic Schools, while in Brady those funds were paid directly to the Catholic Schools. I believe that this is a distinction without a difference. The policy decision was made simply to circumvent the proscription of Brady.
The only issue that this Court is required to decide here is whether it is permissible for the Fiscal Court to pay the transportation expenses of the Catholic school children of Jefferson County. I believe that the correct application of §§ 8, 5, 171, 184, 186 and 189 of the Kentucky Constitution mandate that such payment be deemed unconstitutional.
Nichols permits the state to pay for the transportation of private school students to ensure their safety from the weather and traffic. I do not see how either of these threats are removed or even reduced by the Fiscal Court paying the transportation costs of the students. If the present method of transporting the students is unsafe, then what makes it safer by having someone other than the Archdiocese footing the bill? If the present method of transporting the students is safe, then having the Fiscal Court bear the cost is impermissible because there is no basis for the state to invoke its police powers.
I believe that what is occurring in this case is unfortunate, as well as being unconstitutional. The Fiscal Court claims legitimacy by saying that it is only doing so for the welfare of children lest they be struck by lightning or run over by cars on their daily trek to school. The reality is that no risk exists which requires the state to bear the costs of a religious school education. Catholic school children are perfectly safe on the same school buses that they have ridden on for years.
If the state can pay for transportation of students to protect them from the weather, then why cannot the same reasoning be employed to construct school buildings for such students? Certainly classes being held outside would present a threat to the children. The fact those school buildings already exist should not be a problem, because under the majority’s analysis only the threat must exist — whether it has been appropriately addressed by the religious institution which runs the school is irrelevant to their analysis. It seems to me that the same logic could be employed to fund all food services for private religious schools as well. As one can see there is virtually no end to the ways the majority opinion permits widespread aid to private religious schools. Short of actually paying for the teachers themselves (and even those could be rationalized as a necessary item to make sure that the children were properly supervised during the day) there is no expense that the state could not be made to bear pursuant to the majority’s stance. This would fly in the face of the clear wording and purpose of the Constitution of Kentucky.
*918I believe that with this decision the majority has commenced a process that will render the constitutional system which protects both the state and religion from encroachment by the other a wholly meaningless set of words. By avoiding the clear spirit of the relevant constitutional provisions in claiming that lowering the costs of a private religious school education is merely an incidental benefit, the majority is engaging in a tactic that violates the letter and the spirit of our Constitution.
Lowering the wall between the separation of church and state cuts both ways. That which the state aids, the state can also regulate and control. I believe that there is a distinct possibility that the day may come soon when the church will awake to see that the tail has begun to wag the dog. As a firm believer in separation of church and state for the protection of both institutions, I am sorry to see that this day has come to pass. While with a wink and nod, the majority has permitted the funding of private religious students’ transportation costs to assure the “safety” of the students, I believe that same wink and nod shall return to the detriment of those who it would appear to be serving in this matter.
Therefore, I must respectfully dissent.
JOHNSTONE and STUMBO, JJ., join in this dissenting opinion.