# Rhoades v. Abington Township School District

> Supreme Court of Pennsylvania · January 17, 1967 · 424 Pa. 202

URL: https://www.frixlaw.com/law-library/cases/9761371

## Case

- **Full name:** Rhoades v. Abington Township School District; Worrell v. Matters
- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 17, 1967
- **Citations:** 424 Pa. 202; 226 A.2d 53; 1967 Pa. LEXIS 765
- **Precedential status:** Published
- **Opinion:** Concurrence by Robeets
- **Judges:** Bell, Cohen, Eagen, Jones, Musmanno, O'Brien, Robeets, Roberts
- **Cited by:** 28 later opinions in the Frix Law Library

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## Opinion text

Concurring Opinion by
Me. Justice Robeets:
The thrust of plaintiffs’ attack on the Act of June 15, 1965, P. L. 133, 24 P.S. §13-1361 (hereinafter re *229 ferred to as Act 91) is that it violates the separation of chnrch and state mandated by the Constitution of the United States and that it violates various provisions of the Constitution of Pennsylvania. I concur with the view, shared by all but one member of this Court, that the Everson case forecloses this Court from holding that the statute violates the federal guarantee of separation. It is also my view that, even admitting that the statute will require the expenditure of additional funds for the busing of school children, Act 91 does not violate the Constitution of Pennsylvania.
In asserting their challenge to the Constitution of Pennsylvania, the plaintiffs have invoked no less than the six following provisions of our Constitution:
Article I, §3: “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any ease whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.”
Article III, §17: “No appropriation shall be made to any charitable or educational institution not under the absolute control of the Commonwealth, other than normal schools established by law for the professional training of teachers for the public schools of the State, except by a vote of two-thirds of all the members elected to each House.”
Article III, §18: “No appropriation shall be made for charitable, educational or benevolent purposes to any person or community nor to any denominational and sectarian institution, corporation or association: Provided, That appropriations may be made for pensions or gratuities for military service and to blind persons twenty-one years of age and upwards, and for *230 assistance to mothers having dependent children and to aged persons without adequate means of support, and in the form of scholarship grants or loans for higher educational purposes to residents of the Commonwealth enrolled in institutions of higher learning, except that no scholarship grants or loans for higher educational purposes shall be given to persons enrolled in a theological seminary or school of theology.”
Article IX, §7: “The General Assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association, institution or individual.”
Article X, §1: “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of six years may be educated, and shall appropriate at least one million dollars each year for that purpose.”
Article X, §2: “No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian schools.”
A harmonious reading of these six provisions forces me to an observation which I deem crucial to the setting in which the plaintiffs’ challenge must be considered : Although Article I, §3 and Article X, §2 clearly establish a wall of separation between the Commonwealth and religious institutions, the more recently adopted Article III, §18 1 seems to contemplate certain instances in which public money may properly be expended in the course of educational activities having a connection with church-related institutions. The last part of the proviso of Article III, §18, suggests to me *231 state constitutional sanction for the payment of scholarship grants for higher education in those church-related institutions not teaching theology. I can see no other reasonable interpretation of Article III, §18’s specific exclusion of theological schools and its silence on the matter of other programs conducted at institutions of higher learning.
That there are limits to the wall of separation erected by the Constitution of Pennsylvania is a conclusion which is not only required by constitutional language itself, but demanded by the practical realities of life in a modern interdependent community where there must of necessity be many points of contact between the agencies of government and all institutions, whether church-related or not. It is the inevitability of these points of contact which has undoubtedly permitted to exist, without significant successful challenge, the provision of many governmental services—fire, police, sewage—which in some sense benefit the conduct of religious institutions. Viewed in terms of hard realities, therefore, it is not the mere benefit to a religion which causes a service provided by government to violate our Constitution.
While provision of a general governmental service, which benefits a church-related institution, may not be for that reason alone unconstitutional, it is clear that for the constitutional language separating church and state to have the vital effect it was meant to have by its authors, there must be some areas and some services which government may not provide to religious institutions. The real difficulty is in gleaning from the sweeping phrases of our constitutional document the place where the line must be drawn.
The defendants in this case, as well as the opinion of the Court in the main rely upon the so-called child benefit theory to draw the line separating the constitutional from the unconstitutional. Given the presump *232 tion in favor of the constitutionality of acts of the Legislature 2 and given this Court’s duty to accept, unless palpably unreasonable, 3 the Legislature’s view as to the reasonable relation of statutes to the public health, safety and welfare, I concur in the view that Act 91 is a safety measure whose object is the protection of children from road hazards. I also agree with the Court that such a conclusion is a crucial factor in determining the constitutionality of Act 91. It is my belief, however, that the constitutionality of legislation which benefits directly or indirectly a church-related institution may not be held constitutional merely because it is determined that the purpose or effect of the legislation is the welfare of children or, for that matter, any other proper object of legislative concern. Our Constitution’s prohibition of any compelled support of a place of worship, maintenance of a ministry or preference of religion encompasses not only the proscription of financial aids to religion, but also any other governmental action creating special government approval of or involvement with religious activities. 4 And, the background of the Commonwealth’s constitu *233 tional pronouncements on freedom of religion suggests strongly that prohibition of such aid to religion is, if anything, stricter than the proscription of financial aids. 5 Moreover, for such non-financial governmental involvement or approval to be constitutionally proscribed, a measure need not be as blatantly violative as a statute compelling weekly attendance at a house of worship. Far less overt forms of involvement and association would, in my view also be constitutionally void, and I can imagine measures which, though they arguably come within the child benefit theory, would bring government and religious institutions in such close association as to constitute, by virtue of implicit sanction of the government presence, the proscribed “support”, “maintenance”, and “preference”. 6
Thus what is ultimately persuasive to me in the instant case is not only that Act 91 is a welfare measure, but also the fact that the transportation of students is, in the phrase of Everson, “so separate and indisputably marked off” 7 from functions in any sense associated with religion. In other words, though I accept the conclusion that not only actual teaching of religion, but also the conduct of many other programs in parochial schools, is infused with religious significance, it seems to me clear that the process of transporting parochial students in a public bus is so devoid of any psychological, let alone religious, significance, that it does not bring the government into an association with the school which implies the approval or sanction proscribed by *234 our Constitution. Indeed, the mere geographical distinctness of the facility being provided out of public funds and church-related institution underscores the lack of involvement of government with religion that Act 91 creates. The simple fact is that Act 91 does not even envision the use of a public facility within the confines of a religious institution; on the contrary, the language of Act 91 suggests that in many instances parochial school students will not even be carried to the doors of their schools.
Finally, I think it must be pointed out that the dissenting opinions are incorrect in their view that Act 91 is unconstitutional by virtue of its scheme of classification. It must be remembered that “courts may not question the wisdom of the legislative classification unless there can be found no reasonable ground for it” 8 and that “the reasonableness of the classification made is for the Legislature in the first instance.” 9 The Legislature’s exclusion of children attending schools operated for profit may have been motivated by a judgment that families of means sufficient to afford such schooling are not, like families of students attending nonprofit schooling, deterred by cost from ensuring that their children travel to and from school by a safe method of transportation. I fail to see why that would not be a basis for classification reasonable within this Court’s above mentioned test. As to Mr. Chief Justice Beli/S contention that Act 91’s exclusion of children attending schools operated for profit reveals it as solely intended to benefit sectarian education, the answer is simple: Act 91 includes not only children attending *235 sectarian schools not operated for profit, but also children attending wow-sectarian, non-public schools not operated for profit.
Mr. Justice Jones, Mr. Justice Eagen and Mr. Justice O’Brien join in this concurring opinion.
Amendment of November 5, 1963.
E.g., Prichard v. Williston Township School Dist., 394 Pa. 489, 493 , 147 A. 2d 380, 383 (1959). “ ‘An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates tbe Constitution,’ ” Daly v. Hemphill, 411 Pa. 263, 271 , 191 A. 2d 835, 840 (1963) ; Chartiers Valley Joint Schools v. Allegheny County Bd. of School Directors, 418 Pa. 520, 546 , 211 A. 2d 487, 501 (1965) ; Milk Control Comm’n v. Battista, 413 Pa. 652, 659 , 198 A. 2d 840, 843 , appeal dismissed, 379 U.S. 3 , 85 S. Ct. 75 (1964).
Commonwealth v. Life Assur. Co. of Penna., 419 Pa. 370 , 214 A. 2d 209 (1965), appeal dismissed, 384 U.S. 268 , 86 S. Ct. 1476 (1966) ; Loomis v. Philadelphia School Dist. Bd., 376 Pa. 428 , 431-32, 103 A. 2d 769, 771 (1954).
See Gobitis v. Minersville School Dist., 21 F. Supp. 581, 584-86 (E.D. Pa. 1937), decree entered, 24 F. Supp. 271 (E.D. Pa. (1938)), aff’d 108 F. 2d 683 (3d Cir. 1939), rev’d on other grounds, 310 U.S. 586 , 60 S. Ct. 1010 (1940).
21 Encyclopedia Americana 512-15 (1957 ed.) ; .Bnckalew, An Examination of the Constitution of Pennsylvania 5 (1883).
Compare Hysong v. Gallitzin Borough School Dist., 164 Pa. 629, 658-62 , 30 Atl. 482, 484-86 (1894) (dissenting opinion). See also Commonwealth v. Herr, 229 Pa. 132 , 78 Atl. 68 (1910) (per curiam).
Everson v. Board of Education, 330 U.S. 1, 18 , 67 S. Ct. 504, 512-13 (1947).
Loomis v. Philadelphia School Dist. Bd., 376 Pa. 428 , 432, 103 A. 2d 769, 771 (1954). See Commonwealth v. Life Assur. Co. of Penna., 419 Pa. 370 , 214 A. 2d 209 (1965), appeal dismissed, 384 U.S. 268 , 86 S. Ct. 1476 (1966).
Loomis v. Philadelphia School Dist. Bd., supra note 8 at 431, 103 A. 2d at 771 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761371. Public record. Not legal advice.