Opinion of the Justices to the Senate & the House of Representatives

To the Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, having considered the questions proposed in the joint order of the General Court, which was received by us on May 7 and a copy of which is hereto annexed, respectfully answer as follows:

The Constitution of the Commonwealth in several clauses inculcates the practice of religion and urges the public worship of God, as essential means for the perpetuation of republican institutions. But in emphatic and unmistakable terms, it guaran* tees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices, subject only to the conditions that the public peace must not be disturbed nor others obstructed in their religious worship or the general obligations of good citizenship violated. This is clear from art. 2 of the' Declaration of Rights and art. 11 of the Amendments, which absolutely prohibit the enactment of any law establishing any particular religion or restraining the free exercise of any particular religion. We answer “Yes” to the first question.

So far as the second question relates to the appropriation of money for schools the answer is simple. Article 18 of the Amendments to the Constitution was adopted because of a deep seated conviction of the imperative necessity of preserving the public school system in its integrity and of guarding it from attack or change by explicit mandate. Public schools never have been understood to include higher institutions of learning like colleges and universities. All moneys raised by taxation for the purpose of expenditure within the sphere of the public or common schools, as these words generally have been understood, must be disbursed exclusively for the support of such schools and cannot be diverted to any other kind of school maintained in wholé or in part by any religious sect. But there is no constitutional prohibition of appropriations for higher educational institutions, societies or undertakings under sectarian or ecclesiastical control. Merrick v. Amherst, 12 Allen, 500. Jenkins v. Andover, 103 Mass. 94.

So far as the second question relates to the appropriation' of public money for aiding any church, religious denomination or' religious society, it presents more difficulty. The Chief Justice and Justices Morton, Braley and De Courcy are of opinion that such an appropriation is prohibited by the Constitution and its Amendments, while Justices Hammond, Loring and Sheldon incline to the opposite conclusion. It has been said repeatedly that answers given by the Justices to questions propounded by the Legislature have not the binding force of decisions of the court, but are the opinions of the individual justices acting as constitutional advisers to a co-ordinate department of the government. The doctrine of stare decisis does not apply to them, but they are open to reconsideration and revision. Green v. Commonwealth, 12 Allen, 155, 164. Opinion of the Justices, 5 Met. 596, 597. Opinion of the Justices, 126 Mass. 557, 566. Whether under these circumstances the existing provisions of the Constitution “adequately prohibit” the appropriation of money raised by taxation for these purposes so that there is no “necessity for the adoption of an amendment” to this end, presents a legislative question rather than a question of law.

. The answers already given render unnecessary any further answer to your third question.

Arthur P. Rugg.

James M. Morton.

John W. Hammond.

William Caleb Loring.

Henry IC. Braley.

Henry N. Sheldon.

Charles A. De Courcy.